Examiner of Trade-Marks than he would have had to prosecute his application before the Examiner for the second time after an adverse decision by the Commissioner in an ex parte case. (Newcomb Motor Co. v. Moore, C. D., 1908, 332; 133 O. G., 1680; 30 App. D. C., 464.)

This decision of the Court of Appeals of the District of Columbia sustaining the decision of the Commissioner refusing registration of appellant's mark has been entered of record in the Patent Office and must "govern the future proceedings in the case," (sec. 4914, R. S.). Following a decision of the Court of Appeals of the District of Columbia the Commissioner has repeatedly refused to reopen a case for further prosecution in the Patent Office. (Ex parte Starkey, C. D., 1903, 239; 105 O. G., 745; ex parte Milans, C. D., 1908, 456; 135 O. G., 1126; Gueniffet et al. v. Wictorsohn, C. D., 1908, 108; 134 O. G., 255.) In the case first cited the Commissioner held:

No good reasons appear why the proposed amendments were not made before the consideration of the case by the Office was closed. A party is not entitled to conduct his case experimentally to a final adverse decision and then have it reopened for prosecution upon a new line. Such piecemeal action is not permissible. After a case has been decided by the court of appeals it must ordinarily be regarded as finally disposed of.

The action of the Examiner was right, and the petition is accordingly denied.

EX PARTE LOONEN.

Decided September 15, 1909.

146 O. G., 957.

TRADE-MARKS-" PARISIAN IVORY" FOR TOOTH-BRUSHES-NOT REGISTRABLE. The words 'Parisian Ivory" are not registrable as a trade-mark for tooth-brushes, since the word "Parisian" is geographical and the word "Ivory" as applied to tooth-brushes is either descriptive or deceptive.

ON APPEAL.

TRADE-MARK FOR CLOTHES-BRUSHES AND TOILET-BRUSHES.

Messrs. Goepel & Goepel for the applicant.

BILLINGS, Acting Commissioner:

This is an appeal from the decision of the Examiner of TradeMarks refusing to register the words "Parisian Ivory" as a trademark for clothes-brushes and toilet-brushes.

As stated by the Examiner of Trade-Marks:

The word "Parisian" is defined as "of or pertaining to Paris, the chief city of France, or its inhabitants, etc." Century Dictionary Cyclopedia.

It is admitted by the applicant in one of the papers filed during the prosecution of the case that the word "Parisian" would indi

cate that the goods are of such a character that the distinctive characteristics for which Parisians are famous throughout the world would be exemplified in them.

Judicial notice is taken of the fact that goods of the character described are made in part of ivory or imitation ivory. If these goods are, in fact, made of ivory, this word is clearly descriptive, whereas if the goods are made of imitation ivory it is equally clear that the phrase "Parisian Ivory" is deceptive.

The applicant states in the paper to which reference has been made above:

It could, however, easily be supposed that an artificial substitute for ivory. might be made there, (Paris,) and that the fanciful name "Parisian Ivory is applied to it to denote not the place of its manufacture but is of such a character that the tasteful characteristics for which Parisians are famous throughout the world are exemplified in it.

This would appear to be an admission that the words "Parisian Ivory" as applied to the goods in question are not an arbitrary phrase, but have a well-defined meaning which is capable of general

use.

The decision of the Examiner of Trade-Marks is affirmed.

CALIFORNIA FRUIT CANNERS ASSOCIATION . RATCLIFF-SANDERS GROCER COMPANY.

Decided September 1, 1909.

146 O. G., 958.

1. TRADE-MARKS-INTERFERENCE-REOPENING TO TAKE TESTIMONY.

From a refusal of the Examiner of Interferences to reopen the case for the purpose of extending the times to take testimony no appeal lies, (citing Goodfellow v. Jolly, C. D., 1905, 105; 115 O. G., 1064, and others.)

2. SAME-SAME-APPEAL-DELAY.

Where the circumstances of the case indicate a fixed policy of delay by a party to opposition and interference proceedings and his appeal is filed outside the limit set, a motion to extend the limit to include the appeal will be denied and the appeal dismissed.

ON MOTION.

TRADE-MARK FOR CANNED FRUITS.

Mr. W. R. Stone and Mr. Eugene C. Brown for California Fruit Canners Association.

Mr. F. T. F. Johnson for Ratcliff-Sanders Grocer Company.

TENNANT, Assistant Commissioner:

This case is before me upon a motion by the Ratcliff-Sanders Grocer Company, first, that a petition of the California Fruit Can

ners Association to set aside the judgment rendered by the Examiner of Interferences July 28, 1909, and reopen the case be dismissed; second, that the appeal by the California Fruit Canners Association from the Examiner of Interferences to the Examiners-in-Chief, filed August 17, 1909, be dismissed; third, that the appeal filed August 20, 1909, by the California Fruit Canners Association from the decision of the Examiner of Interferences to the Commissioner be dismissed. The record shows that this interference was declared April 13, 1909, and times set for the taking of testimony by the respective parties. On July 8, 1909, the California Fruit Canners Association moved to extend the time for taking testimony. This motion, however, was denied by the Examiner of Interferences upon the ground that the showing in support of the motion was insufficient. On July 17, 1909, the Examiner of Interferences issued an order against the California Fruit Canners Association to show cause why judgment should not be rendered against them on or before August 7, 1909. In reply to this order the California Fruit Canners Association filed a motion to reopen the case for the purpose of taking testimony. The Examiner of Interferences, however, considered the showing in support of this motion insufficient to warrant the reopening of the case and rendered a final decision of priority against the California Fruit Canners Association, the junior party, in view of its default in taking testimony within the time set.

The limit of appeal from this decision was set for August 17, 1909. On August 17 the California Fruit Canners Association filed an appeal from the decision of the Examiner of Interferences addressed to the Examiners-in-Chief and accompanied by a fee of ten dollars. The reasons of appeal are stated as follows:

The ground upon which this appeal is based is that the Examiner of Interferences erred in denying the motion of the California Fruit Canners Association to reopen this interference.

Upon being advised by this Office that the appeal was informal in that it was addressed to the Examiners-in-Chief instead of the Commissioner and that the fee accompanying the same was insufficient, the California Fruit Canners Association, on August 20, filed a formal appeal to the Commissioner, accompanied by a motion to extend the limit of appeal to include the date of filing of the same, and also presented a petition to the Commissioner that jurisdiction be restored to the Examiner of Interferences for the purpose of extending the limit of appeal and that the Examiner of Interferences be directed to so extend the limit of appeal.

From the facts above stated it appears that the decision of the Examiner of Interferences is based upon the default of the junior party to take testimony within the time set. Concerning his right to enter

such judgment there remains no ground for discussion before an appellate tribunal. The refusal of the Examiner of Interferences to reopen the case for the purpose of extending times to take testimony, which is the allegation of error set forth in the informal appeal to the Examiners-in-Chief, and which is apparently the matter sought to be reviewed, is not an appealable question. (Goodfellow v. Jolly, C. D., 1905, 105; 115 O. G., 1064; Christensen v. McKenzie, C. D., 1905, 238; 117 O. G., 277; Wickers and Furlong v. Weinwurm, C. D., 1907, 219; 129 O. G., 2501.) It therefore follows that no useful purpose could be subserved by entertaining the appeal filed by the California Fruit Canners Association.

It appears from undenied statements of the Ratcliff-Sanders Grocer Company, in reply to certain motions, that this interference was preceded by an opposition by the California Fruit Canners Association, which, in view of the default of that party to take testimony, had only the effect of delaying the registration of the senior party's mark for several months. It would appear, therefore, that the sole purpose of the appeal filed by the California Fruit Canners Association is to delay the registration of the senior party's trade-mark.

While it is not the practice of the Office to be unduly harsh in refusing to extend the limit of appeal to include an appeal filed outside of the limit set when such appeal is filed in good faith and sufficient showing is made of reasons why it was not filed within the proper time, it is believed that the Office is not justified in excusing defaults of this character where, as in the present case, the circumstances indicate that the sole purpose of appeal is to delay the termination of the interference.

The petition of Ratcliff-Sanders Grocer Company is granted, and the petition and appeals of the California Fruit Canners Association are accordingly dismissed.

THE OZO REMEDY COMPANY v. CARNRICK & Co., LTD.

Decided September 13, 1909.

146 O. G., 959.

TRADE-MARK INTERFERENCE-APPLICANT AND REGISTRANT-AFFIDAVITS BY APPLICANT OF ABANDONMENT OR NON-USE BY REGISTRANT-REPLY AFFIDAVIT REQUIRED.

Where in an interference between an application and a registration the applicant files a sworn statement of facts tending to show that the registrant does not use or has abandoned the mark in issue, it is proper to require that the registrant file a sworn statement in reply or in event of the failure to file such statement that a judgment by default be rendered against him.

ON PETITION.

TRADE-MARK FOR MEDICINE.

Messrs. Taylor & Hulse and Messrs. Steuart & Steuart for The Ozo Remedy Company.

Mr. James L. Norris for Carnrick & Co., Ltd.

TENNANT, Assistant Commissioner:

This is a petition by Carnrick & Co., Ltd., invoking the exercise of the supervisory authority of the Commissioner to set aside a decision of the Examiner of Interferences.

This is an interference between an application of The Ozo Remedy Company and a registration of Carnrick & Co., Ltd., No. 23,098, granted May 23, 1893. It appears from the record of The Ozo Remedy Company's application for registration and from a motion by that company in this interference that the officers of The Ozo Remedy Company carried on certain correspondence with Carnrick & Co., Ltd., relative to the use of the trade-mark involved in this interference and were advised by Carnrick & Co., Ltd., that—

we have not yet put upon the market a preparation bearing this name.

These facts are set up in an affidavit in support of the motion by The Ozo Remedy Company before the Examiner of Interferences that Carnrick & Co., Ltd., be required to file counter affidavits within a certain time traversing these facts and that in event of the failure of the latter to comply with this requirement judgment be rendered in favor of The Ozo Remedy Company.

The Examiner of Interferences granted this motion, holding that the affidavit accompanying the motion filed by The Ozo Remedy Company is, in effect, a sworn pleading by that party alleging that Carnrick & Co., Ltd., are not the owners of the mark in issue and that the registration of the latter is invalid and that in the event of the failure of Carnrick & Co., Ltd., to file a sworn pleading in answer thereto judgment by default would be rendered against the latter.

It is contended in behalf of the petitioner that the certificate of registration issued to Carnrick & Co., Ltd., is prima facie evidence of ownership, which can be overcome only by testimony duly taken, with the right of cross-examination, establishing priority of adoption of the mark in issue by the applicant or abandonment by the registrant. It is further urged that the Examiner of Interferences was without authority to require the registrant to file affidavits in reply to those filed by the applicant.

I am of the opinion that these contentions are untenable and that the action of the Examiner of Interferences in this case is well founded. An interference proceeding is instituted for the purpose of