length figure of a colonial military officer, accompanied by the words "Col. Willett." Appellant filed notice of opposition to the granting of appellee's registration, on the ground that it was the owner of a registered mark that it and its predecessors had used on canned fruits and vegetables since 1880, consisting of a bust portrait of Gen. Anthony Wayne in a colonial military uniform. This mark was first registered by its predecessor in business in 1887 and again registered by it in 1906.

Appellant filed, its notice of opposition to the registration of appellee's mark on the ground that the similarity of the marks would tend to create confusion in trade. Appellee demurred to appellant's notice of opposition. On hearing, the Examiner of Interference overruled the demurrer and gave appellee thirty days in which to further plead or answer. From this decision of the Examiner, appellee appealed to the Commissioner of Patents, which appeal was dismissed for the reason that it was not an appeal from a final order of the Examiner. Appellee then went back to the Examiner, and, the time within which it might answer the notice of opposition having expired, judgment was rendered against it upon the demurrer. From this decision of the Examiner of Interferences sustaining the opposition of appellant and refusing registration to appellee, appellee appealed to the Commissioner of Patents, who reversed the decision of the Examiner and dismissed the opposition, allowing registration to appellee. From this decision, the matter comes here on appeal.

It appears that the appellant and its predecessors have been engaged in the business of canning fruits and vegetables in Wayne county, New York, since the year 1867, and has used its mark continuously since 1880. The appellee company is engaged in similar business in the county of Madison, adjoining the county of Wayne, in New York, and has been using its mark since 1897.

The sole question to be here considered is, whether the marks are so similar as to create confusion or mistake in the mind of the public when applied to goods of the same descriptive properties. The statute under which this case arises is as follows:

That trade-marks which are identical with a registered or known trade-mark owned and in use by another, and appropriated to merchandise of the same descriptive properties, or which so nearly resemble a registered or known trade-mark owned and in use by another, and appropriated to merchandise of the same descriptive properties, as to be likely to cause confusion or mistake in the mind of the public, or to deceive purchasers, shall not be registered.

It is conceded that the goods to which the marks before us are applied contain not only the same descriptive properties, but are identically the same. This narrows the question to the similarity of the marks sought to be used. Just what degree of resemblance is necessary to bring about confusion in trade is incapable of exact

definition. About all that can be said is, that no person engaged in trade can adopt a trade-mark so resembling that of another trader, when applied to the same class of goods, as will mislead a purchaser when buying with ordinary caution. The rule announced by the Supreme Court in McLean v. Fleming (C. D., 1878, 262; 13 O. G., 913; 96 U. S., 245) is as follows:

Two trade-marks are substantially the same in legal contemplation, if the resemblance is such as to deceive an ordinary purchaser giving such attention to the same as such a purchaser usually gives, and to cause him to purchase the one supposing it to be the other.

In the two marks here before us, a striking characteristic is the figure of a colonial military officer, in which the uniforms are substantially the same, and the resemblance of the men is striking; except that, in the case of appellant, only the bust of the officer appears, while appellee's mark represents a full-length figure. It is not a case where portraits of two men are used who are known and recognized by the public generally throughout the commercial world; but, in the case of appellee at least, the officer represented is practically unknown. These marks, when appearing on the canned goods of the respective parties, exposed to the public on the shelves of the retailer, are so similar as to be likely to cause confusion; and where, as in this case, there is no evidence on that subject except the marks themselves, it is the duty of the court to protect the prior registrant and user from the probability of any such occurrence. It is strangely coincident that appellee, engaged in the same business as appellant and located in the adjoining county to where appellant has used his mark for many years, should select a mark so similar. The propertyright in trade-marks is a valuable one, and is entitled to protection from those who would profit by its imitation, and the courts should resolve the doubt, if any exists, in favor of the prior registrant and user in good faith.

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

[Court of Appeals of the District of Columbia.]

IN RE BERGER.

Decided January 5, 1909.

140 O. G., 1004; 32 App. D. C., 358.

PATENTABILITY-NON-INVENTION-SHELF-BRACKET-CHANGE IN FASTENING.

A shelf-bracket having a brace pivotally secured to the bracket at one end, so that it can be swung aside while securing the bracket to the wall and shelf, Held lacking in patentable invention in view of a prior patent disclosing a bracket having a brace arranged to be attached to the bracket after the latter is secured in position.

Mr. W. G. Henderson for the appellant.

Mr. W. S. Ruckman for the Commissioner of Patents.

SHEPARD, C. J.:

The appellant, Berger, filed an application for an improved sink or shelf bracket having two claims. One of these was allowed, the other rejected. From the decision rejecting that claim he has appealed. The claim reads as follows:

A sink or shelf bracket composed of angularly-disposed members normally joined one to the other, and a connecting brace-bar having one end permanently secured to one of said members by a rivet pivotally connecting it thereto between the angularly-disposed members, the opposite end of said bar being free, to permit the brace-bar to be swung to one side of the bracket in place, substantially as described.

The invention is thus described in appellant's brief:

The object of the invention is to construct the bracket so that its bracing-bar, while forming a permanent inseparable part of the bracket, may, when the bracket is being set up in place, be swung to one side out of the way, in order that the workman may have perfect freedom in the use of his hands for the unobstructed manipulation of the necessary tools in attaching the bracket to the wall and the sink to the horizontal arm of the bracket. This is accomplished by loosely riveting one end of the brace to one arm of the bracket, so that the rivet serves as a pivot on which the brace may turn, or rotate, the other end of the brace being left free and unattached, and the two arms of the bracket formed so as to permit the brace to swing freely to one side or the other to meet the requirements of the place or position in which the brackets are set up. Several patents cited as references, but only two were finally relied on-Doebler, December 21, 1897, and Callender, July 9, 1901. The Commissioner said:

None of the references cited shows the exact construction set forth in the claim. The patent to Callender, however, shows a sheet-metal bracket having a detachable brace which is secured in place by screws passing therethrough and through the wall and shelf portions of the bracket. The Doebler patent shows a sheet-metal bracket, the brace of which is riveted to the wall and shelf portions. The holding of the Examiner that the claim is not patentable over these references was clearly correct. To omit one of the rivets of the Doebler device, or to omit the lugs and projections of the Callender device and rivet one end of the brace constitutes a mere reorganization of the parts which is not invention. It is urged that by pivoting the brace it can be swung aside so as to be out of the way of the tools used in putting the bracket in place, but this is true of the Callender construction, since the bracket can be fastened to the wall and to the shelf before the brace is put in place.

The contention of the appellant is, that to adapt the construction of either patent to perform the function of applicant's bracket, they must be reconstructed for the purpose of putting into practice ception not suggested by either patentee.

con

In other words

he says

neither patent, in the remotest degree, suggests the idea, or discloses a construction capable of putting it into practice.

And in an attempt to bring himself within the doctrine relating to some apparently simple inventions which were nevertheless held to be patentable, that was enounced in Webster Loom Co. v. Higgins (C. D., 1882, 285; 21 O. G., 2031; 105 U. S., 580, 591) and other cases cited, he argues as follows:

In behalf of the applicant it is contended that if the idea is original, and when embodied in practical form the construction is novel and the parts operate in a manner of which the citations are incapable, and a useful purpose is served, all the requisites of invention and patentability are existing, and the invention is entitled to protection of patent. If any patent were cited showing the idea to be old, and some means for carrying the idea into practice, there might then be raised the question whether the particular means employed by applicant for carrying the same idea into practice involved invention or mere mechanical skill. But where the conception is novel, the construction is novel, and a useful result is accomplished, the inventor is entitled to a patent, however simple his invention may be.

We may assume the applicability of this argument to Doebler's patented construction, for while his brace is riveted, though not loosely so as to act as a pivot, he, apparently, had no conception of the object which applicant had in view, namely, the convenient fastening of the bracket, under all conditions of location of the shelf or sink, without the interference of the brace in the operation. But it does not apply to Callender who had this object in view, and went about its attainment in a different way. In the specification of the latter's patent it is said:

In this class of brackets, which are designed to be attached to the wall and shelf or other structure by screws or similar fastening devices, difficulty has been experienced in conveniently securing the same in position by reason of the position of the supporting-brace, which prevents the use of the tools in a convenient manner. In my improved device the shelf and wall plates are first secured in position and the brace afterward attached thereto.

Instead of riveting one end of his brace loosely to the bracket so that it would act as a pivot, leaving the brace to be swung out of the way of the mechanic while securing the bracket to the wall and shelf, he accomplished the same purpose by attaching his brace after the bracket shall have been secured in position. Having this object disclosed in the specification of the patent, with knowledge of which the applicant must stand charged, the real question presented is, whether the mere change in the manner of securing the brace to accomplish the same beneficial result, involved invention or mere mechanical skill.

The object of the invention is not an important one to which the attention of skilled mechanics would probably be called, to any extent, with a view to provide a simpler or more effective means than that of Callender to carry it out. The pivoted rivet was old and in constant use. It seems to us, therefore, that any skilled mechanic, with the specifications of other patents before him, and desiring to improve on Callender's exploitation of the idea, would readily have conceived a construction similar to applicant's. (See in re Garrett, C. D., 1906, 645; 122 O. G., 1047; 27 App. D. C., 19, 23; Millett v. Allen, C. D., 1906, 752; 124 O. G., 1524; 27 App. D. C., 70, 76; in re Warren, C. D., 1908, 351; 134 O. G., 258; 31 App. D. C., 308, 311.) We agree with the Commissioner that the claim of invention is not made out.

The decision rejecting the application will, therefore, be affirmed. It is so ordered; and the clerk will certify this decision to the Commissioner of Patents as the law prescribes.

[Court of Appeals of the District of Columbia.]

CHARLES DENNEHY & Co. v. ROBERTSON, SANDERSON & CO., LIMITED.

TRADE-MARKS-"MOUNTAIN DEW" FOR WHISKY-DESCRIPTIVE.

The words "Mountain Dew" as a trade-mark for whisky Held to be descriptive and registration properly refused, for the reason that, however fanciful the term may originally have been, the words are now generally recognized as meaning whisky.

Mr. A. E. Wallace for the appellant.

Mr. Marcellus Bailey for the appellee.

SHEPARD, C. J.:

This appeal is from the denial of registration to the words "Mountain Dew" as a trade-mark for whisky.

The application of Charles Dennehy & Co., a corporation, filed June 15, 1905, alleged the use of the words as a trade-mark for whisky in commerce among the States continuously since the year 1882. July 27, 1905, this application was denied by the Examiner on the ground that mountain-dew is a term commonly applied to, and descriptive of whisky. December 21, 1905, applicant filed a substitute for the original, in which he alleged continuous and exclusive use of the words as a trade-mark for ten years next preceding the passage of the Trade-Mark Act, of February 20, 1905,