Trade-Marks.

Commissioner's Decision.

BLACK BETSEY COAL & MINING COMPANY V. THE W. J. HAMILTON COAL COMPANY. Decided December 15, 1913.

1. TRADE-MARKS

INTERFERENces-CancelatION-RES ADJUDICATA.

Where after an intereference between an applicant and a registrant is decided adversely to the applicant he files a petition for the cancelation of the registration, Held that the application for cancelation should be dismissed, since the judgment in the interference was conclusive of every question that might have been presented therein.

2. SAME-CANCELATION-ACT OF 1881.

Whether section 13 of the act of 1905 applies to trade-marks registered under the act of 1881, quaere.

APPEAL from Examiner of Intereferences.

TRADE-MARK FOR COAL.

Mr. Edward S. Duvall, Jr., for Black Betsey Coal & Mining Company.
The W. J. Hamilton Coal Company, pro se.

EWING, Commissioner:

This is an appeal by the Black Betsey Coal & Mining Company from the decision of the Examiner of Interferences dismissing its application for cancelation.

The parties to this cancelation proceeding were parties to an interference proceeding, No. 32,697, in which the same question was involved as is involved in this cancelation proceeding and in which judgment was rendered against the Black Betsey Coal & Mining Company under date of April 17, 1912, as follows:

The date set for final hearing in this case having passed and the Black Betsey Coal & Mining Company, the junior party, having failed to file any testimony within the time allowed for that purpose, it is hereby adjudged that the Black Betsey Coal & Mining Company is not entitled to register the trade-mark in issue.

As no appeal was taken, this decision became final May 7, 1912. Therefore this cancelation proceeding must be dismissed under the doctrine of Bluthenthal & Bickart v. Bigbie Bros. & Co. (143 O. G., 1346; 33 App. D. C., 209).

I do not sustain the Examiner of Intereferences in dismissing the application for cancelation on the authority of Funke v. Baldwin (127 O. G., 392), as I see no reason why Section 13 of the Trade-Mark Act of 1905 should not be held to apply to trade-marks registered under the eariler act. Section 13 does not alter in any way the right of a registrant to his trade-mark, but merely provides a new remedy in case a trade-mark is registered by a party who never had or who has abandoned any right thereto.

The language in Section 13 is broad enough to cover registrations under the earlier act, and there is no reason for limiting its plain meaning. The registrations confer the privilege of suing in a particular Court and may be used to make out a prima facie case of ownership. Where no fundamental right exists this privilege and advantage should not be enjoyed, and the legislature may properly provide a method of canceling the registrations.

The Examiner of Interferences is sustained.

Trade-Marks.

EX PARTE THE CURTIS PUBLISHING COMPANY.

Decided December 11, 1913.

TRADE-MARKS-PUBLICATIONS DISTRIBUTED FREE-MERCHANDISE.

A publication which is distributed free for advertising purposes Held to constitute merchandise within the meaning of the Trade-Mark Act and a mark used on such publications to be registrable.

ON APPEAL.

TRADE-MARK FOR A

PERIODICAL.

Mr. Charles N. Butler for the applicant.

NEWTON, Assistant Commissioner:

This is an appeal from the refusal of the Examiner of Trade-Marks to register the words "The Swastika" as a trade-mark for a periodical.

The ground of the Examiner's rejection seems to be that a publication or magazine that is to be distributed free for advertising purposes is not merchandise within the meaning of Sections 1 and 2 of the Trade-Marks Act.

But on inspection of the sample copies of the publication it is found that they contain besides advertising matter certain matter of a literary character. They appear, however, to be distributed freely and mainly for advertising purposes.

It has been the custom for the past twenty-five years, at least, to register the names of magazines as trade-marks. Indeed, the applicant has specified two magazines, one denominated "Thrift," registration No. 68,523, and another for printed pamphlets and circulars, given away to advertise religious movements by the "Brotherhood of Disciples of Christ," No. 81,850, May 16, 1911, and upon an inspection of these last-mentioned pamphlets it is not seen why the present applicant's trade-mark does not identify “merchandise” as that term is used in the trade-mark statutes if the marks on the other publications do. Indeed, whether a magazine periodically issued, containing only advertisements and given away free, should be distinguished under the trade-mark statute from the ordinary magazine is doubtful, and in the present instance, even though the magazine is distributed freely, the publishers undoubtedly expect in some way to get a return. They do not pretend to publish this magazine gratuitously, and it is thought that the Office should be liberal rather than restrictive in its interpretation of what publications are held as merchandise under the trade-mark statute, and the decision of the Examiner of Trade-Marks is overruled.

Books and Pamphlets Received.

CANADIAN PATENT LAW AND PRACTICE BY HAROLD FISHER, B.A., LL.B., of the Ottawa Bar, and Russell S. Smart, B.A., M.E., Advocate of the Quebec Bar. With Appendix, CANADIAN PATENT OFFICE PRACTICE, BY W. J. LYNCH, I.S.O., Chief of the Canadian Patent Office. Law octavo, half calf, 482 pages. United States Agents: Cromarty Law Book Company, Philadelphia.

With a rapidly increasing population of seven and a half million, and a territory capable of supporting many times this number, Canada to-day offers a rich field for the exploitation of every kind of industrial property, and one where legiti

mate enterprise may count upon a hearty welcome. Due to its part British, part American ideals, its industrial protection has grown up, patterned after no one system, and with many features found no where else. This law and practice, largely the growth of the past generation, is presented to the reader with reference to the procedure according to the laws of England and the United States.

The several chapters are devoted to, Subject Matter, Novelty, Utility, Abandonment-Public Use or Sale, Effect of Foreign Patents on Rights in Canada, Application, Refusal-Appeal, Reissue, Devolution-Assignment-License, WorkingImportation-Compulsory License, Caveats, Infringement, Marking, Foreign Patent Law, Forms, Table of Cases Cited, etc.

The Appendix-the second edition, revised, of CANADIAN PATENT OFFICE PRACTICE, BY W. J. LYNCH, 144 pages, is indispensible for the guidance of attorneys in preparing and prosecuting applications and other proceedings relating to Canadian patents. In succinct form, Mr. Lynch gives the actual steps requisite at each stage of presentation-at first hand, the author being largely responsible for the practice, in his capacity of Chief of the Patent Office. For a clear, concise presentation of the subject this portion of the work is especially commended.

International Union.

Official Journals. Contents for December.

LA PROPRIÉTÉ INDUSTRIELLE.

OFFICIAL PART. Domestic Legislation: HUNGARY. Laws and Regulations concerning the enforcement of the provisions of the Conference of Washington.-ITALY. Regulation of March 20, 1913, for the execution of the TradeMark Law.

Circulars and Administrative Notices: ITALY. Circular No. 4, of June 27, 1913, concerning the putting into execution of the new regulation for the registry of Trade-Marks.

UNOFFICIAL PART. Correspondence: LETTER FROM AUSTRIA. Decisions and Practice in Austria.-LETTER FROM FRANCE. (M. André Taillefer.) Propositions of law of interest to industrial property before the Chamber of Deputies. Application of the International Convention to the French as regards internal affairs.-Protection of Costume Designs.

Jurisprudence: AUSTRIA. Divers decisions concerning the Convention of the Union, Patents and Trade-Marks.-FRANCE. Indications of origin; Vittell Salts; Convention of the Union.-Designs of toilettes and costumes-protection by the Laws of 1909.

Miscellaneous News: ITALY. New regulation for the application of the Patent Law.

Bibliography: LA PROPRIETE INDUSTRIELLE, LITTERAIRE ET ARTISTIQUE, DROIT COMMERCIAL COMPLEMENTAIRE, by Georges Bry.

end.)

Statistics: GREAT BRITAIN. Industrial Property in 1912. (Continuation and

LE DROIT D'AUTEUR.

OFFICIAL PART. International Union: GREAT BRITAIN. Adhesion to the

126

INTERNATIONAL UNION—ADJUDICATED PATENTS

revised Convention of Berne, of Nov. 13, 1908, for the Australian Federation, Papua and Norfolk Island.

UNOFFICIAL PART. General Observations: INTERNATIONAL STATISTICS OF INTELLECTUAL PRODUCTION, 1912 (Germany, Austria, Belgium, Denmark, Spain, United States, France, Great Britain, Hungary, Italy, Luxemburg, Holland, Poland and Switzerland).

Miscellaneous News: GERMANY. The National Library.-HUNGARY. Preparations for entrance into the Union.

Bibliography: HET AUTEURSRECHT IN NEDERLAND, by Dr. F. W. J. G. Snijder van Wissenkerke, Director of the Office of Industrial Property of the Netherlands, etc.

Adjudicated Patents.

No 1,008,694. Bryan. For a spring contracting and removing device for use as an automobile-tool, claims 2 and held valid and infringed and claims 1, 4 and 7 valid, but not infringed. 207 F. R.,. 107.

No. 556,317. Porter. For a derailing-switch. Void for lack of invention in view of the prior art, and especially of the Martel Patent No. 243,933. 206 F. R., 670.

No. 655,862. Goulding. For a tally-card for use in progressive-euchre contests, etc. Held not infringed. 206 F. R., 677.

No. 859,511. Nolte. For a process of constructing a concrete floor. Held not void on its face for lack of invention. 206 F. R., 666.

Nos. 865,795 and 927,581. McKenna. Each for a tally-card for use in progressive-euchre contests, etc. Held not infringed. 206 F. R., 677.

No. 610,861. Goodwin. For a photographic-film support to be used in connection with roller-cameras. Held valid and infringed as to claims 1, 6, 8, 10 and 12. 207 F. R., 351.

No. 611,900. Garland and Garland. For a process of treating and enameling metal surfaces. Held valid and infringed. 207 F. R., 346.

No. 636,482. Barrell. For a drier-felt for paper machines. Held valid and infringed. 207 F. R., 371.

No. 701.776. Valvona. For a mold for making biscuit cups used for holding ice cream. Held valid, but not infringed. 207 F. R., 377.

No. 701,776. Valvona. For a mold for making biscuit cups used for holding ice cream. Held infringed. 207 F. R., 380.

No. 701,776. Valvona. For a mold for making biscuit cups used for holding ice cream. Held valid and infringed. 207 F. R., 374.

No. 1,009,474. Cobb. For a machine for making solder-hemmed caps for cans, claims 46 and 58 held valid and infringed. 207 F. R., 363.

No. 541,941. Moffatt. For a process of forming starch into coherent masses. Construed and held not infringed. 207 F. R., 571.

No. 723,307 and No. 754,807. Reno. Tunnel construction.

held not infringed. 207 F. R., 561.

Construed and

No. 781,711. Brown. For a process for treatment of precious-metal-bearing ores. Held valid and infringed. 207 F. R., 579.

No. 824,908 and No. 835,850. Cohn. For improvements in envelopes. Held valid and not infringed. 207 F. R., 547.

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