Page images
PDF
EPUB

TRADE-MARKS-Continued. 19. SAME-SAME-While there may be a difference between defendants' packages

of laxative compound and the packages of the California Fig Syrup Company's laxative compound, and such a difference as to probably put the general trade dealer on his guard, yet, defendants having adopted the tradename of the California Fig Syrup Company, the consumer is likely to be deceived thereby, and it is against the probability of such imposition upon the consuming class of the public that courts will extend their protec

tion. *Id. 20. REGISTRATION OF THE WORD "SPLENDID” REFUSED—The registration of the

word “Splendid” as a Trade-Mark for flour refused upon the ground that it

is not arbitrary or fanciful. Ex parte Stokes, 90. 21. A TRADE-MARK MAY BE USED BY MANY JOINTLY AND ALL JOIN IN AN

ACTION FOR INFRINGEMENT-A Trade-Mark may be adopted, owned, and used by a number of parties engaged in the same business as separate firms, and all of them may join as complainants in a suit to restrain infriugement.

Gravel Roofers Exchange et al. v. Turnbull et al., 693. 22. Same-The members of an association may adopt and uso a Trade Mark to indi

cate that the goods on which it is placed are manufactured or sold by some member of the association, in which case the Trade-Mark indicates a class

of persons or firins, rather than any single one. Id. 23. HOTEL Name" COLUMBIA” A FancifuL WORD AND REGISTRABLE-The

name "Columbia" as applied to a hotel is a fanciful name, indicating no people, no locality, and no particular service which a hotel will render, and

the person first selecting it is entitled to its use. Whitfield v. Loveless, 694. 24. SAME-GEOGRAPHICAL WORDS-A namo, although generic anal geographical,

is within the rule of protection in law if it doos not indicate that the busiDess carried on is to be patronized by the people of any particular locality, or that any specific product is thereiu to be sold, or any particular language

is there to be spoken. Id. 25. SAME-PRIORITY—That which is prior in time is first in right. Id. 26. RegistraTION OF THE WORD “ FLORENTINE” GRANTED—The registration of

the word “ Florentine" as a Trade-Mark for glass granted, as Florence is not noted as a place for the mannfacture of glass, and therefore no deception as to the quality or origin of the manufacture can occur. Ex parte Mississippi

Glass Company, 96. 27. REGISTRATION OF MERE WORDS BY GERMAN CITIZENS-A trade-mark con

sisting of the word “Germania" may be registered in the United States by a German citizen, under the provisions of Articlo XVII of the convention of December 11, 1871, although the German statutes make no provisions for the registration of mere words as Trade Marks. Ex parte Portland-Cement-Fabrik

Germania" H. Manske & Co., 101. 28. TRADE-MARKS—Rule 13—Trade-Mark Rule 13, which states that “each appli

cant and registrant will be held to the date of adoption alleged in the statement filed with his application," Held to be not inconsistent with law, and therefore has the force of a statute. Stuart Medicine Company v. Goldaine,

104. 29. APPLICATION TO REGISTER BY A STATE-COMMERCE BY A STATE OUTSIDE

Its Own LIMITS—The State of South Carolina applies to register the TradeMark “Palmetto" in the Patent Office, to be applied by labels to bottles of intoxicating liquors to be regularly sold by the State outside its own limits in commerce with foreign nations or with Indian tribes.

1. It seems that a State may take upon itself the character of a trading corporation while retaining in other respects the essentials of a sovereigu State.

TR'DE-MARKS—Continued.

2. While it is not necessary to decide how, if in any manner, a State may enter the domain of commerce, whether by an express authorizing provision in its constitution supplemented by appropriate legislation to carry it into effect, or otherwise, the executive officers of a State may not, in the absenco of legislation, embark the State in such a trade.

3. The act of the State of South Carolina, approved December 24, 1892, entitled "An act to prohibit the manufacture and sale of intoxicating liquors as a beverage within this State, except as hereiu provided,” is a measure for the suppression of the liquor traffic within the State by private individuals and to substitute therefor its complete control by the State, and is not a law which authorizes a rogular trade in liquors by way of sale to foreign purchasers.

4. The State of South Carolina, notwithstanding the acts of its Governor and State Board of Control has no authorized trade in liquors outside its own limits. It is not the owner of any Trade-Mark, has not at this time the right to the use of the Trade-Mark sought to be registered, and therefore

5. The application is denied. Ex parte State of South Carolina, 115. 30. ALTERNATIVEs—The word “Crescent" and the representation of a crescent

shaped figure refused registration on the ground that they are not true alterna

tivos. Ex parte Lazarus, Schwarz, and Lipper, 119. 31. NAME AND SIGNATURE OF A DECEASED PHYBICIAN-A druggist whose only

relation with a physician was that he filled the latter's prescriptions occasionally cannot, upon the death of the physician, adopt the fac-simile of his signature and picture, or either of them, as a Trade-Mark without show. ing to the Office in some manner the consent of the physician that this should be done, or acquiring the right to do so from the personal represent

ative of the decedent. Stewart v. Einstein v. Sawhill, 122. 32. SAME — OWNER OF — INTERFERENCE PRIORITY - PRACTICE — The person

attempting to do this is not the owner of the Trade-Mark; his use of it in commerce with foreign nations or otherwise is unlawful, and in interference

proceedings judgment of priority cannot be rendered in his favor. Id. 33. SAME-PARTNERSHIP IN TRADE-PHYSICIAN AND PHARMACIST-RIGHT OF

SURVIVING PARTNER TO INCHOATE TRADE-MARK-Another drnggist who had a commercial partnership with the physician up to the time of his death, in the business of dispensing the remedies used by the physician, the two having an extensive trade in them, domestic and foreign, has a right, as surviving partner to the trade which had becoino established, to the good. will connected with it and to the inchoato Trado-Mark right which was incident to it, at least to the extent of treating them as assets of the part

Dership for the purpose of closing out the partnership business. Id. 34. SAME-APPLICATION FOR A TRADE-MARK BY A SURVIVING PARTNER—Non

USE OF THE TRADE-MARK IN FOREIGN COMMERCE UNTIL AFTER THE FILING OF THE APPLICATION-PRACTICE-Upon an application by the latter druggist showing the adoption of the Trade-Mark in this trade after the death of the physician, and its use in foreign commerce after the filing of the application, but not before, the case is remanded to the Examiner of Trade-Marks, with instructions to register the same under a supplemental application, should one be filed, upon a showing that commerce with foreign nations in these remedies, with the label suitably applied, has been

carried on prior to the filing of such supplemental application. Id. 35. RESEMBLANCE-Application for the registration of the word “M. V. Monarch "

refused on a prior Trade-Mark, “Monarch Distilling Co.," usod upon the same class of merchandise. Ex parte Corning & Company, 128.

TRADE-MARKS—Continued. 36. CIGARS-NAME ORIGINATED BY MERCHANT-RIGHT OF MANUFACTURER-Two

classes of labels are recognized by cigar manufacturers—“factory brands” and “customers' brands." The latter are originated by a customer and used only on goods manufactured for him. A cigar merchant ordered a lot of cigars, of a certain size and quality, under the name of “Blackstone,” which he originated. This order the manufacturer filled; but the cigars were not taken by the merchant, and were sold to other parties. Held that the manufacturer acquired no right to use the word “Blackstone” as a

Trade-Mark. * Levy et al. v. Waitt et al., 605. 37. REGISTRATION OF THE WORD “PALMETTO" BY THE STATE OF SOUTH CARO

LINA-DISCRETION OF THE COMMISSIONER-FOREIGN COMMERCE—The Commissioner of Patents under the Trade-Mark statute of March 3, 1881, is not invested with discretionary power to determine whether the applicant for registration is lawfully engaged in foreign trade. * United States ex rel. the

State of South Carolina v. Commissioner of Patents, 622. 38. SAME-SAME-SAME-The discretion of the Commissioner, under that statute,

is to decide the presumptive lawfulness of claim to the ownership of the alleged Trade-Mark, not whether such mark is lawfully used in foreigu com

merce. *Id. 39. SAME-SAME-SAME-The Commissioner having denied registration to the State

of South Carolina on the ground that, in his judgment, the statute under which the State's officers and agents were acting did not authorize a trade with foreign nations, Held that that question was one for the courts in a proper case and the people of the State to determine, it not beiug a matter in which the United States, the Commissioner of Patents, or the goueral

public had any concern or interest. "Id. 40. SAME-SAME-SAME-MANDAMUS—The Commissioner, in the present case,

having exercised and exhausted his discretion, and having refused to register simply on the ground that he has decided that the act of engaging in foreign trade is ultra vires the relator, Feld proper case for peremptory man. damus, the relator having complied with the provisions of the Trade-Mark

statne and the lawful regulations of the Patent Office. * Id. 41. REGISTRATION OF THE WORD “COLUMBIA "-INVALID—The word Columbia

is not a valid Trade-Mark, because it is not the subject of exclusive appropriation under the general rule that a word or words in common use as designating locality or section of a country cannot be appropriated by any one as his exclusive Trade-Mark. (Canal Co. v. Clark, 13 Wall., 311; kveller v. Sanders, 122 N. Y., 65; Connell v. Reed, 128 Mass., 477; Glendon Iron Co. v. Uhler, 75 Pa. St., 467; Loughman et al v. Piper, 128 Pa. St., 1; Amoskeag Mfg. Co. v. Spear, 2 Sandf., 599.) * Columbia Mill Company v. Alcorn et

al., 672. USE AND SALE OF PATENTED ARTICLES. Soe Public Recognition Evidence

of Invention. 1. LETTERS PATENT-ASSIGNEE OF SPECIFIED TERRITORY-SALES FOR USE OUT

SIDE OF TERRITORY-Where an assignee for a specified territory holds title under an otherwise unconditional and unrestricted assignment, the sale of the patented article by the assigneo within his territory carries the right to use it everywhere, notwithstanding the knowledge of both parties that a uso outside of the territory is intended. (Following Adams v. Burks, C. D.,

1885, 438; 33 O. G., 114; 17 Wall., 453.) "Hobbie et al. v. Jennison, 352. 2. USE OF THE PRODUCT MADE UNDER A PROCESS PATENT-A PURCHASER OF AN

ARTICLE MADE UNDER A PATENT FOR A PROCESS A LICENSEE TO USE THE PROCESS TO THE EXTENT OF USING THE PURCHASED ARTICLE-Where the dofondant bought from the patentee a croamery containing four cans made

USE AND SALE OF PATENTED ARTICLES-Continued.

under the patent, Held that the defendant thereby became a licensee to use the process in connection with that creamery and its cans and their neces

sary repairs, but no further. * Vermont Farm Machine Company v. Gibson, 421. UTILITY. See Construction of Specifications and Patents, 22, 31; Designs, 1, 3. VALIDITY OF PATENTS. Seo Demurrer, 2; Injunction, 5; Prior Adjudication. VALID PATENTS. Sec Construction of Specifications and Patents, 18, 19, 32, 35, 36,

37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53; Patents to Dead Men; Particular Patents, 5, 10, 11, 18, 19, 22, 25, 32, 41, 42, 46, 51, 55, 57, 62, 63, 72, 73,

77, 80, 82. VOID PATENTS. See Construction of Specifications and Patents, 20, 34; Particular

Patents, 1, 2, 3, 4, 6, 7, 8, 9, 12, 13, 14, 15, 21, 30, 31, 34, 38, 40, 44, 45, 48, 54, 60, 64,

65, 67, 68, 69, 70, 74,75, 76, 78; Reissue8, 1, 2. WAIVER OF OBJECTIONS. See Suits for Infringement, 4. WITHDRAWAL OF CASE FROM ISSUE. See Amendments, 1. 1. APPLICATION FOR PATENT—WITHDRAWAL FROM ISSUE-An application will not

be withdrawn from issue for the insertion of a claim in the absence of any

showing of great hardship or irremediablo injury. Ex parte Blakeslee, 72. 2. SAME-SAME-CLAIM VOLUNTARILY CANCELED— The withdrawal of an applica

tion from issue for the purpose of inserting a claim previously presented and

voluntarily cauceler will not be permitted. Id. WITNESSES. See Interference, 12; Subpunas; Suits for Infringement, 1. . WITNESSES TO APPLICATIONS. APPLICATIONS FOR PATENTS—ATTESTATION OF INVENTOR'S SIGNATURE TO SPECI

FICATION—The attestation by two witnesses of the inventor's signature to the specification forming part of his application for patent is made imperative by section 4888, Revised Statutes, and Rulo 40. Ex parte Ackroyd

et al., 58. WRIT OF ERROR. Soe Suils for Infringement, 11.

« PreviousContinue »