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Opinion of the Court.

[43 App.

Mr. Thomas J. Johnston and Mr. Albert G. Davis for the appellee.

Mr. Justice ROBв delivered the opinion of the court:

Appeal from a decision of the Patent Offee sustaining the opposition of the appellee, General Electric Company, to the registration by the appellant, Anglo-American Incandescent Light Company, of the word "Mazda" as a trademark for incandescent gas mantles.

The appellee registered and very extensively advertised and used this word as a trademark for incandescent electric lamps prior to its adoption and use by the appellant. The evidence fully sustains the finding of the Examiner of Interferences that appellant "not only knew of the prior use of the word 'Mazda' upon electric lamps by the General Electric Company (the appellee), but adopted the same for gas mantles because of the publicity which the mark had attained from its extensive advertising by the latter Company."

The trademark act (33 Stat. at L. 724, Chap. 592, Comp. Stat. 913, § 9485), to which we have many times referred, denies registration to trademarks which are identical with a registered or known trademark owned and in use by another, and appropriated to merchandise of the same descriptive properties, or which so nearly resemble such a registered or known trademark as to be likely to cause confusion or mistake in the mind of the public or to deceive purchasers, if appropriated to merchandise of the same descriptive properties. As we said in Phoenix Paint & Varnish Co. v. John T. Lewis & Bros. 32 App. D. C. 285, in enacting this legislation Congress evidently intended to prevent the registration of a mark that would enable an unscrupulous dealer to obtain the benefit of a valuable trade reputation established by conscientious effort and fair dealing, to the injury of the public, as well as to one who had established such a reputation. It is our duty, therefore, to give the act such a practical interpretation as will effectuate its obvious intent. In the abovecited case we ruled that "two trademarks may be said to be

Opinion of the Court.

appropriated to merchandise of the same descriptive properties, in the sense meant by the statute, when the general and essential characteristics of the goods are the same."

The Century Dictionary thus defines the noun "property:" "Any character always present in an individual or a class; an essential attribute; a peculiar quality; loosely, any quality or characteristic." We think Congress, in using the words "descriptive properties," intended that they should be given their popular signification. Giving them that signification, no trademark may be registered when it is appropriated to goods of the same general qualities or characteristics as those of the goods to which another trademark already has been appro priated. In American Store Co. v. Detroit Stove Works, 31 App. D. C. 304, we ruled that gasolene stoves and coal or wood stoves were goods of the same descriptive properties, within the meaning of the trademark act. We think that decision controlling here. It was pointed out that the two classes of stoves were devoted to the same general use, that of heating and cooking; in other words, that their general qualities or characteristics were so nearly identical that the vending of each by two rival manufacturers, under the same trademark, would be likely to cause confusion, to the injury of the one first to adopt the mark, and to the general public. In the present case, as in the above-cited case, the goods are used for the same purposes, namely, artificial lighting. They not only are usually sold by the same dealer, but frequently are used together on combination fixtures. While, of course, no one of average intelligence would purchase a "Maxda" gas mantle in the belief that it was a "Mazda" electric lamp, the average person would believe that he was purchasing the product of the manufacturer of "Mazda" lamps. See Walter Baker & Co. v. Harrison, 32 App. D. C. 272. It requires no argument to demonstrate that injury might result from such confusion, both to the appellee and to the general public.

The decision is affirmed.

Affirmed.

D. C.]

Opinion of the Court.

LA FLEUR v. HARRIS.

[43 App.

PATENTS; INTERFERENCE; DIVISIONAL APPLICATIONS; EVIDENCE; MASTER AND SERVANT; ORIGINALITY.

1. In an interference involving an improvement in automobile tire casings, in which one of the applicants relied upon an earlier application filed prior to the issuance of a patent to his rival, as divisional of his later application, it was held that one of the claims of the earlier application constituted the broad claim of the invention of the issue, and therefore the earlier applicant had only the burden of establishing his case by a preponderance of the evidence.

2. Where it appeared that one of the parties to an interference involving an improvement in automobile tire casings employed the other to make a tire for him; that the employee wrote to his employer that he would do so, but would not assume any responsibility for the wear and stability of the work, as it was entirely experimental, and thereupon made three casings which embodied the invention of the issue; and that the employer then organized a company for the manufacture of the casings,-it was held that the emplower was entitled to an award of priority, although the employee was the first to file his application.

No. 960. Patent Appeals. Submitted March 9, 1915. Decided
March 29, 1915.

HEARING on an appeal from a decision of the Commissioner of Patents in an interference proceeding. Affirmed.

The facts are stated in the opinion.

Mr. Robert M. Barr and Mr. R. M. Hunter for the appellant.

Mr. Charles H. Howson for the appellee.

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

This appeal is from the decision of the Commissioner of

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Patents in an interference proceeding awarding priority of invention to appellee William D. Harris. The issue is as follows:

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"As an article of manufacture an automobile tire casing consisting of an annular shoe made U-shaped in cross section and having gradually increased thickness from the sides to the tread and comprising a fabric case or carcass A, and padding layer C of yielding rubber, a breaker strip D of fabric upon the padding layer, a cover E extending over the padding layer and breaker strip and of gradually increasing thickness as the tread portion is approached from each side and the side portions of the cover separated at their thickest portions to form a wide and very deep annular groove almost the full thickness of the cover, combined with a tread portion secured in said annular groove and composed of layers of woven textile material embedded in rubber and having small elasticity and in which the ends of the fibers of the textile layers are brought to the surface of the tread to receive the wear."

It appears that the application of appellant, Charles E. La

Opinion of the Court.

[43 App.

Fleur was filed September 13, 1907, upon which a patent was issued August 24, 1909. Harris's application in interference was filed November 15, 1909. Harris, however, relies upon an earlier application of October 2, 1907, of which he claims the latter application is a proper division. This claim has been approved by the Board of Examiners in Chief and the Commissioner of Patents. Our investigation satisfies us that the finding is amply supported by the record.

On the question of the right of Harris to make the claim, and of continuity between the two applications, there was a division of opinion in the tribunals of the Patent Office. The Examiner of Interferences alone held that the later Harris application was not divisional of the first. In reaching this conclusion, the examiner seems to have overlooked the following claim in the earlier application:

"11. A tire having a wearing surface composed of substantially parallel strips of fabric lying substantially perpendicular to the wearing surface of the tire, a body of fabric extending through the tire, with a body of rubber lying between said body of fabric and the inner edges of the parallel strips."

This, we think, constitutes a broad claim of the invention in issue. Therefore Harris, having filed this application before patent was issued to La Fleur, has only the burden upon him of establishing his case by a preponderance of the evidence.

The real issue in the case is a question of originality, rather than of priority. It appears that in the fall of 1906 Harris employed La Fleur, who followed the business of repairing tires, to make a tire for him. La Fleur made two tires, and also a sample tire which was cut in sections. These tires embodied the issue of the invention. They were delivered to Harris in January, 1907, and paid for by him. Other tires were subsequently made for Harris, and also paid for by him. The dispute is whether the tires were made according to the disclosure of Harris or La Fleur. Each claims to have disclosed the invention to the other.

The tires made in January, 1907, constitute a reduction to practice of the invention; and, since the application of the

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