Evidence has been furnished by the applicant to the effect that the registrants have no objection to the registration by the applicant of the trade-mark claimed, and it is contended, in view of this fact, that there is no such likelihood of confusion in the mind of the public as to warrant the denial of registration. While such consent by a registrant is persuasive where the marks are not identical, it cannot be considered as controlling. As was stated in the decision of Wright & Taylor v. Bluthenthal & Bickart v. Mayer, Sons & Company v. Cushman & Company, (C. D., 1905, 540; 119 O. G., 2234 :) In determining the question of identity this Office must exercise its own judgment, and it will not dissolve an interference and register to two or more parties marks which it regards as substantially identical. This conclusion was reached notwithstanding the apparent willingness of the parties involved in the interference to have the interference dissolved and all of the interfering marks registered. The decisions in Kops Bros. v. Royal Worcester Corset Co. (C. D., 1905, 516; 119 O. G., 1584) and The Windsor Milling and Elevator Company v. Brunner (C. D., 1906, 128; 121 O. G., 1676) are to the same effect. The principle stated in these decisions is believed to be well founded and is applicable to the present case. The word "Quaker" is a predominant feature of the applicant's mark, and therefore, in my opinion, the public would be likely to be misled into believing that the merchandise sold under the mark "Quaker Maid " were goods of the same manufacture as those sold under the trade-mark "Quaker" or "Quakeress." The Supreme Court of the United States said in the case of Saxlehner v. Eisner & Mendelson Company, (C. D., 1900, 362; 93 O. G., 940; 179 U. S., 19, 33:) It is not necessary to constitute an infringement that every word of a trademark should be appropriated. It is sufficient that enough be taken to deceive the public in the purchase of a protected article. It was said by Vice-Chancellor Shadwell, in 1847 "that if a thing contains twenty-five parts and but one is taken, an imitation of that one will be sufficient to contribute to a deception, and the law will hold those responsible who have contributed to the fraud. (Guinness v. Ulmer, 10 Law Times, 127.) " While this may be a somewhat exaggerated statement, the reports are full of cases where bills have been sustained for the infringement of one of several words of a trade-mark. (Shrimpton v. Laight, 18 Beav., 164; Clement v. Maddick, 1 Giff., 98; Hostetter v. Vowinkle, 1 Dill., 329; Morse v. Worrell, 9 Am. Law Review, 368; Grillon v. Guenin, Weekly Notes, 1877, 14; American Grocer Pub. Co. v. Grocer Pub. Co., 25 Hun., 398.) The Court of Appeals of the District of Columbia in re Herbst Importing Company (C. D., 1908, 383; 134 O. G., 1565; 30 App., D. C., 297) held that the words "Chancellor Club" so nearly resemble the word "Club" as to be likely to cause confusion in the minds of the public and deceive purchasers. In the Peter Schoen hofen Brewing Company v. The Maltine Company (C. D., 1908, 386; 134 O. G., 1805; 30 App. D. C., 340) the same court held that the words "Edelweiss Maltine," although associated with a fanciful picture, so nearly resemble the word "Maltine" as to be likely to cause confusion in the mind of the public. For similar reasons it must be held that the mark for which registration is applied so nearly resembles the registered marks as to be prohibited from registration by the provisions of section 5 of the Trade-Mark Act of 1905. The decision of the Examiner is affirmed. TRADE-MARKS DEITSCH BROS. v. LOONEN. Decided April 5, 1909. 141 O. G., 1161. OPPOSITION-PLEA-APPEAL. There is no right of appeal from the decision of the Examiner of Interferences overruling a plea to a notice of opposition. ON PETITION. TRADE-MARK FOR TOOTH-BRUSHES. Mr. Joseph L. Levy for Deitsch Bros. MOORE, Commissioner: This is a petition by Loonen that an appeal be allowed from the decision of the Examiner of Interferences, dated March 6, 1908, overruling the plea filed in response to Deitsch Brothers' application for cancelation of Loonen's trade-mark involved herein. It is urged that in view of the decision of the Court of Appeals in the case of E. McIlhenny's Son v. New Iberia Extract of Tobasco Pepper Company, Limited (C. D., 1908, 325; 133 O. G., 995; 30 App. D. C., 337) Loonen was entitled to this appeal. While the preamble of the decision of the Court of Appeals referred to states that this is an appeal from a decision of the Commissioner of Patents overruling a general demurrer filed by appellant to a petition filed by appellee for the cancelation of the word "Tabasco," which appellant had registered in the Patent Office as a trade-mark for pepper-sauce the records of this Office show that after the demurrer had been overruled a time was set within which the registrant should file an answer to the application for cancelation. The registrant, however, filed no answer and permitted final judgment by default to be entered against him. Appeal was taken from this final decision, and of course the question involved was based upon the same grounds as those considered by the Examiner of Interferences in his decision overruling the demurrer. No similar proceedings have been had in the present case. The practice in applications for cancelation follow as nearly as possible the proceedings in equity cases. The rule relating to orders overruling or allowing pleas in equity cases, as stated in the Encyclopedia of Pleading and Practice, (vol. 16, p. 627,) is as follows: 9. Nature of order overruling or allowing plea.-An order overruling a plea is not appealable, the question decided being merely one of pleading and settling no rights between the parties, and an order allowing a plea does not of itself determine the cause without entry of an order dismissing the bill. This rule is clearly applicable to proceedings in applications for cancelation of trade-marks, and it follows that there is no right of appeal from the decision of the Examiner of Interferences overruling the applicant's plea. In view of the fact that the applicant was apparently misled into bringing this appeal by the language of the decision of the Court of Appeals of the District of Columbia, above quoted, and since the time set by the Examiner of Interferences for filing answer is now expired, it is directed that the applicant be given until April 13, 1909, to file an answer to the application for cancelation. The petition is denied. HоCH v. MCCASKEY V. HOPKINS. Decided April 6, 1909. 141 O. G., 1161. INTERFERENCE-MOTION UNDER RULE 109-DISCRETION OF THE EXAMINER OF INTERFERENCES. Where the Examiner of Interferences refused to transmit a motion under Rule 109 unless the moving party filed within a fixed time a statement pointing out the parts or elements of his application covered by the elements of the claims submitted, Held that this is a question of procedure which is clearly within the jurisdiction of the Examiner of Interferences and should not be reviewed unless there is a clear abuse of discretion on his part. ON PETITION. ADDING-MACHINE. Messrs. Foster, Freeman, Watson & Coit for Hoch. Mr. Philip Mauro for McCaskey. Mr. John D. Rippey and Mr. George R. Hamlin for Hopkins. MOORE, Commissioner: This is a petition by Hopkins that an appeal be entertained and heard from the decision of the Examiner of Interferences refusing 21895-H. Doc. 124, 61-2- -6 to transmit a motion under Rule 109 unless the moving party file within a fixed time a statement pointing out the parts or elements of his application covered by the elements of the claims submitted. It is urged that the question raised is a departure from the practice heretofore followed by the Office and that an appeal should be allowed in order that this question may be settled by the Commissioner in person. The Examiner of Interferences in his decision stated in part that I believe that when such a statement of facts is called for by opposing parties in connection with a motion of this kind and the invention is an unusually complicated one, the Office should require such a statement to be furnished before the motion is transmitted. That the invention is an unusually complicated one in this case is sufficiently indicated by the fact that the moving party has at present in his case over three hundred claims. Hopkins is therefore required to file a statement pointing out the parts or elements upon his drawing which correspond to the elements of the claims which he seeks to add. This statement must be filed, accompanied by proof of service, before April 8, 1909. If a sufficient statement is not filed, the motion to amend will be denied transmission. The parties will be heard upon the sufficiency of the statement upon April 12, 1909, at 10 a. m., or as soon thereafter as the case can be reached. It appears from the portion of the decision of the Examiner of Interferences above quoted that the moving party is not denied the right to make the claims and that the Examiner of Interferences has requested an explanation of the claims in order to indicate that the motion is brought in good faith and not for the purpose of delay and also to facilitate the disposition of the case by the Examiner on the matters presented before him. This is a question of procedure which is clearly within the jurisdiction of the Examiner of Interferences and which should not be reviewed unless there is a clear abuse of discretion upon his part. The question presented is one which is not appealable as a matter of course. The petition is denied, and the appeal which was filed on April 5 is dismissed. EX PARTE MCPHAIL. Decided April 15, 1909. 141 O. G., 1162. EXAMINATION OF APPLICATION-SECOND REJECTION-RIGHT OF APPEAL. Where after a thorough discussion of the references the claims have been twice rejected upon the same references, the applicant has a right of appeal from such rejection even though the Examiner did not designate his second rejection a "final rejection." ON PETITION. HEAT-CONTROLLING DEVICE FOR METAL-MELTING APPARATUS. Mr. A. H. Spencer for the applicant. BILLINGS, Assistant Commissioner: This is a petition from the action of the Examiner holding the above-entitled application to be abandoned. The record shows that the case as originally filed contained three claims. The Examiner in his first action upon the application rejected these claims in view of certain stated references. Applicant thereupon filed an amendment modifying claim 2. The Examiner then rejected the claims upon the same references as before. The applicant then amended each of the claims and filed an argument discussing the pertinency of each of the references of record. In his next action the Examiner stated that "the rejection of each of the claims is repeated." He further rejected each claim in view of two additional patents to Frolich and Rundquist. Following this action by the Office the applicant amended his specification and discussed the pertinency of the patents to Frolich and Rundquist to his amended claims. The Examiner thereupon rejected each of the claims in view of the references which had hitherto been applied to such claims and further discussed the pertinency of the patents to Frolich and Rundquist to applicant's invention. On the last day of the year following this rejection the applicant filed an appeal to the Examiners-in-Chief. The Examiner, however, refused to forward this appeal upon the ground that the appeal was not such an action as the condition of the case required and that the Office letter of January 27, 1907, was not a final" rejection and held the case to be abandoned. 66 It is urged in behalf of the applicant that he has had two rejections of the claims upon the same reference and is entitled to the appeal provided by section 4909, Revised Statutes. The Examiner, upon the other hand, contends that the last action upon the claims was merely a rejection and that the case was open to further amendment and was not in readiness for appeal. The Examiner cites several decisions in which it is held that the letter intended to close the consideration should contain a positive statement that the claims are finally rejected. The decisions cited by the Examiner are to the effect that the applicant should be notified when a final rejection is entered in order that he may be advised that his right to amend had ceased and that appeal was in order. It is believed, however, that where, after thorough discussion of references with an Examiner, as has been had in this case, an issue has been reached and the applicant has received a second rejection upon the same claims in view of the same references he has a right to appeal at that time, notwithstanding the fact that the Examiner did not |