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Opinion of the Court.

[43 App.

Mr. Chief Justice SHEPARD delivered the opinion of the Court:

This appeal is from a decision canceling the same.

The representation of the staple could not constitute a technical trademark, as it is peculiarly descriptive of the article. In Re Schweinfurter Pracisions-Kugel-Lager-Werke Fichtel & Sachs, 38 App. D. C. 279, 280. Recognizing this fact, the registration was applied for and granted under the ten-year clause of the statute.

The label on the packages consists of a reproduction of the Vinton patent, and became associated in the public mind with the manufactured article. Upon the expiration of the patent the right to manufacture the article passes to the public, and the monopoly cannot be prolonged by the claim of a trademark descriptive of the article. Singer Mfg. Co. v. June Mfg. Co. 163 U. S. 169, 41 L. ed. 118, 16 Sup. Ct. Rep. 1002; Yale & T. Mfg. Co. v. Ford, 122 C. C. A. 12, 203 Fed. 707, 710; J. A. Scriven Co. v. H. Towles Mfg. Co. 32 App. D. C. 321,

323.

The attempt at registration of the label is apparently an effort to prolong the monopoly of the patent. National Lock Washer Co. v. Hobbs Mfg. Co. 210 Fed. 516, 518; Bristol Co. v. Graham, 117 C. C. A. 644, 199 Fed. 412, 414. In that case the registered trademark for steel belt lacing was, as in this case, a cut of the patented article and a cut showing its application to the joint. The court (circuit court of appeals of the eighth circuit) said: "The defendant or anyone else having a right to make the lacing, he had a right to describe it as it was described in the specification in the patent. In describing it he was not limited to words used by the patentee in telling what the patent was. He was entitled to describe it by the drawings. The registered trademark is nothing more than a pictorial description of the article made. It is a symbol showing how the lacing is applied. It is a part of the directions which the Bristol Company has always given as to the use of the article."

D. C.]

Syllabus.

The case of Hiram Holt Co. v. Wadsworth, 41 Fed. 34, cited by appellant, is distinguishable from this case. It is unnecessary to inquire whether the proof shows that the pictorial representation was used as a trademark for the ten years prior to registration, and therefore capable of registration under the ten-year clause. See Thaddeus Davids Co. v. Davids Co. 233 U. S. 461, 58 L. ed. 1046, 34 Sup. Ct. Rep. 648, Ann. Cas. 1915B, 322.

We find no error in the decision appealed from, and it is affirmed.

The clerk will certify this decision to the Commissioner of Patents, as required by law. Affirmed.

HEATON-PENINSULAR BUTTON FASTENER COMPANY v. INDEPENDENT BUTTON FASTENER COMPANY. (2)

TRADEMARKS.

This case is governed by the decision of the court in Heaton-Peninsular Button Fastener Co. v. Independent Button Fastener Co. ante, 264.

No. 951. Patent Appeals.

Submitted January 13, 1915. Decided March 1, 1915.

HEARING on an appeal from a decision of the Commissioner of Patents canceling the registration of a trademark.

Affirmed.

Mr. Melville Church for the appellant.

Mr. Ellis Spear, Jr., Mr. J. M. Spear, and Mr. W. F. Hall for the appellee.

Syllabus.

[43 App.

Mr. Chief Justice SHEPARD delivered the opinion of the Court:

This case between the same parties was submitted with Number 950, [ante, 264] and presents substantially the same question.

For the reasons given in the opinion in that case, the decision is affirmed.

The clerk will certify this decision to the Commissioner of Patents, as required by law. Affirmed.

KAISERBRAUEREI BECK & COMPANY v. S. LIEBMANN'S SONS BREWING COMPANY.

TRADEMARKS; SIMILARITY OF NAMES.

The words "Imperator" and "Kaiser," as trademarks applied to beer, although having a philological connection, are not so similar as to be likely to cause confusion in trade.

No. 946. Patent Appeals. Submitted January 14, 1915. Decided March 1, 1915.

HEARING on an appeal from a decision of the Commissioner of Patents dismissing an opposition to an application for registration of a mark as a trademark.

Affirmed.

The facts are stated in the opinion.

Messrs. Goepel & Goepel for the appellant.

Mr. Walter H. Liebmann, Mr. L. A. Tanzer, and Mr. Wm. G. Henderson for the appellee.

D. C.]

Opinion of the Court.

Mr. Justice VAN ORSDEL delivered the opinion of the Court:

Appellant, Kaiserbrauerei Beck & Company, appeals from the decision of the Commissioner of Patents dismissing its opposition to the registration by appellee, S. Liebmann's Sons Brewing Company, of the word "Imperator" as a trademark for beer.

The opposition is based upon the alleged prior use by ap pellant of the word "Kaiser" as a trademark for beer. The ground of opposition is that the marks are so similar as to be likely to cause confusion in trade. While it is true that a motion to dismiss should only be sustained, and the party prevented from taking testimony in support of his notice of opposition, in a clear case in which no reasonable probability exists that the conclusion would be affected by the evidence, we have no doubt in this case. The words have a philological connection, but no similarity in appearance, and, to the average person, no such meaning or association as would cause one to be mistaken for the other. Whether two marks are so similar as to be likely to create confusion is best determined by observation. As was said in Liggett & M. Tobacco Co. v. Finzer, 128 U. S. 182, 32 L. ed. 395, 9 Sup. Ct. Rep. 60 "The judgment of the eye upon the two is more satisfactory than evidence from any other source as to the possibility of parties being misled so as to take one tobacco for the other. * Seeing in such case is believing; existing differences being at once perceived, and remaining on the mind of the observer."

*

The decision of the Commissioner of Patents is affirmed, and the clerk is directed to certify these proceedings, as by law required.

Affirmed.

*

Syllabus.

[43 App.

ELECTRO STEEL COMPANY v. LINDENBERG STEEL

COMPANY.

TRADEMARKS; DESCRIPTIVE NAMES; RIGHT TO OPPOSE REGISTRATION.

1. The word "electro," as applied to steel, is descriptive, implying that the product to which it is applied is the product of an electrical furnace, and is therefore not registerable as a trademark.

2. A company engaged in the business of selling steel of various kinds, and which advertises and sells steel which is the product of an electrical furnace, as "electro" steel, and receives orders from customers for steel of that kind under that name, has a sufficient interest in the word to entitle it to apply for the cancelation of the registration of the word as a trademark by a rival company,—especially where the latter has notified the trade that any other dealer than itself offering electro steel for sale will be liable for appropriation of its trademark. (Citing Natural Food Co. v. Williams, 30 App. D. C. 348; McIlhenny v. New Iberia Extract of Tobasco Pepper Co. 30 App. D. C. 337; and H. W. Johns Manville Co. v. American Steam Packing Co. 33 App. D. C. 224.)

No. 956. Patent Appeals. Submitted January 14, 1915. Decided March 1, 1915.

HEARING on an appeal from the decision of the Commissioner of Patents canceling the registration of a trademark.

Affirmed.

The facts are stated in the opinion.

Mr. Grafton L. McGill for the appellant.

Mr. Perry B. Turpin and Mr. John K. Brachvogel for the appellee.

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