renders judgment of priority against the registrant, Held that an appeal to the Commissioner by the alleged successors is irregular, as they are not parties to the proceeding.

2. SAME-SAME-APPLICANT AND REGISTRANT-SUCCESSOR TO THE REGISTRANT. Before an alleged successor to the business and trade-mark rights of a registrant will be recognized in an interference proceeding such successor must either have an assignment from the registrant of record in this Office or he must file an application in his own name (Frank & Gutmann v. Macwilliam, C. D., 1905, 17; 114 O. G., 542.)

3. SAME-SAME-DECLARATION-DISCRETION OF THE EXAMINER-APPEAL.

The declaration of an interference between two trade-marks is a matter within the discretion of the Examiner of Trade-Marks, and his decision refusing to declare an interference will not be reviewed on appeal except where it appears that such discretion has been abused.

ON APPEAL.

TRADE-MARK FOR BEER, ALE, AND PORTER.

Mr. Robert S. Allyn for Yonkers Brewery.
Messrs. Knight Bros. for Iler and Burgweger.

BILLINGS, Assistant Commissioner:

This is an appeal by Iler and Burgweger from the decision of the Examiner of Interferences holding that the Yonkers Brewery is entitled to register the mark for which it has made application, notwithstanding the registration of Iler and Burgweger.

The record shows that the application of the Yonkers Brewery was rejected on the registration of Iler and Burgweger, that thereafter affidavits were filed making out a prima facie case of abandonment of the Iler and Burgweger mark, and the interference was then declared. The usual notices, one to the registrant in person and another to counsel of record, were sent out, and as the notice addressed to Iler and Burgweger was returned by the post-office undelivered notice was published for six weeks in the OFFICIAL GAZETTE. Thereafter a letter was written to Knight Bros., the attorneys of record of Iler and Burgweger, asking if they knew the address of Iler and Burgweger, and, if so, that the Office be furnished with the same on or before September 29, 1908.

On September 25, 1908, a letter was received from Knight Bros. stating that the Kansas City Breweries Company was the successor of Iler and Burgweger and that Knight Bros. were the attorneys and were authorized to receive all papers in the case. This letter contains the following statement:

The declaration of interference mailed to the undersigned was duly received and transmitted.

In response to this communication the Examiner of Interferences wrote a letter stating that there was no assignment from Iler and Burgweger of record in the Office, and that in the absence of an

assignment an alleged successor would not be recognized, but that such alleged successor might, however, file an application and contest the interference thereon and prove the successorship by testimony.

On October 29, 1908, the Kansas City Breweries Company filed an application for registration of a trade-mark, and upon request of the Examiner of Trade-Marks the interference was transmitted to him for the purpose of adding this party. On November 12, 1908, the Examiner of Trade-Marks informed the Examiner of Interferences that the trade-mark shown in the application of the Kansas City Breweries Company should not be added to the interference, for the reason that it covered a mark not included in the issue of the interference. Thereupon on November 14, 1908, the Examiner of Interferences rendered the decision from which the present appeal is taken.

This appeal is irregular in that, according to their own statement, the firm of Iler and Burgweger is no longer in business, and their alleged successor is not a party to the interference. In view, however, of the circumstances of the case the appeal will be considered. The mark shown in the Iler and Burgweger application includes, among other features, the representation of a hop-blossom, with the letters "I B," in a monogram, thereon. The mark of the Yonkers Brewery includes the representation of a hop-blossom and the letters "Y B," in a monogram, thereon. The mark filed by the Kansas City Breweries Company includes the representation of a hop-blossom and the letters "RB" thereon.

It is contended that there is an interference between these three marks and that the mark of the Kansas City Breweries Company should therefore have been added to the interference, and it is further contended that the Kansas City Breweries Company has made such a showing that it should be allowed to continue the interference as the successor of Iler and Burgweger, even if its application for registration be not admitted to the interference.

As to the first contention, the Examiner of Trade-Marks, as stated above, has held that there is no interference, and it is well settled that this is a matter within his discretion, and his action in refusing to declare an interference will not be reviewed in the absence of an abuse of that discretion. No such case is shown to exist here.

As to the second contention, it is the uniform practice of the Office that in order for an alleged successor of a registrant to be recognized in an interference he must either have an assignment from the registrant of record in this Office or file an application in his own name. (See Frank & Gutmann v. Macwilliam, C. D., 1905, 17; 114 O. G., 542.) In answer to their letter of September 25, 1905, the attorneys of record for Iler and Burgweger were notified of this practice. Such an assignment was not filed, and the Kansas City Breweries Company

elected to file an application for registration, not of the mark shown in Iler and Burgweger's registration, but of a mark differing therefrom. If, as stated in the affidavits of record, the mark shown in Iler and Burgweger's registration has been continuously used down to the present time and the Kansas City Breweries Company is owner of that mark, no reason is seen why it should not have filed an application therefor. Having elected to file an application for a different mark, which, as held by the Examiner of Trade-Marks, does not interfere with the other marks, it cannot be heard to complain if the Yonkers Brewery is allowed registration.

The decision of the Examiner is affirmed.

EX PARTE CHARLES E. BROWN & COMPANY.

Decided June 1, 1909.

143 O. G., 561.

99

TRADE-MARKS-IDENTITY—" NAYASSETT AND "NASSAC."

The word " Nayassett" so nearly resembles a registered trade-mark, "Nassac," appropriated to goods of the same descriptive properties, as to be likely to cause confusion in the mind of the public. Registration was therefore properly refused.

ON APPEAL.

TRADE-MARK FOR canned fruitS, CANNED VEGETABLES, AND COFFEE.

Messrs. Mason, Fenwick & Lawrence for the applicant.

MOORE, Commissioner:

This is an appeal from the decision of the Examiner of TradeMarks refusing to register the mark "Nayassett" as a trade-mark for canned fruits, canned vegetables, evaporated fruits, roasted coffee, and canned clams on the ground that the mark as applied to coffee so nearly resembles the mark "Nassac," registered to Chase and Sanborn, No. 17,741, as a trade-mark for teas and coffees, as to cause confusion or mistake in the mind of the public or to deceive purchasers.

Appellants have filed letters from registrants Chase and Sanborn for the purpose of showing that they do not consider that the marks conflict and do not object to the registration of appellants' mark, and appellants contend that in view thereof all doubt as to the registrability of the mark should be resolved in their favor.

The question, however, is not whether the registrants object to the registration of appellants' mark, but is whether the mark so nearly resembles the registered mark as to be likely to cause confusion or

mistake in the mind of the public or to deceive purchasers. (Ex parte Willard Chemical Company, C. D., 1903, 490; 107 O. G., 1972.) Possibly experts and dealers would not be confused or deceived by the marks, but in my opinion there is such close resemblance as to be very likely to confuse or deceive the purchasing public.

Concerning a registered trade-mark, the Court of Appeals of the District of Columbia in the case of Wayne County Preserving Company v. The Burt Olney Canning Company (post, 318; 140 O. G., 1003) said:

The property-right 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 Examiner of Trade-Marks is affirmed.

MCMANUS v. HAMMER.

Decided May 4, 1909.

143 O. G., 561.

1. INTERFERENCE-PRINTING TESTIMONY-INABILITY TO PRINT MUST BE SHOWN. A corporation will not be relieved from the necessity of printing its testimony in an interference because of a showing that it is financially unable to do so where it is not shown that the parties interested who would be the real beneficiaries of any decision dispensing with printing are also unable to furnish the requisite amount of money.

2. SAME-SAME-IRRELEVANT AND IMMATERIAL TESTIMONY.

A motion to dispense with the printing of part of the record is not the proper way to take advantage of the objection that certain parts thereof are irrelevant and immaterial and that the record was unduly enlarged by improper cross-examination.

APPEAL ON MOTION.

BOTTLE-CLOSURE.

Mr. W. R. Spooner for McManus.
Mr. Hugh M. Sterling for Hammer.

BILLINGS, Assistant Commissioner:

This is an appeal from the decision of the Examiner of Interferences denying a motion brought by Hammer, the senior party, asking to be relieved from printing his record. The motion also asks that if it should be denied as to part of the testimony it be granted as to other specific parts thereof on the ground that such parts are irrelevant and immaterial and that the printing thereof would place an unnecessary burden upon Hammer.

It appears that the application of Hammer involved in this interference has been assigned to the American Metal Cap Company and that Hammer owns only a minority part of the shares of the stock of said company.

The showing in support of the motion consists of the affidavits of the inventor Hammer, Sterling, his attorney, and Werner, who is the president of the American Metal Cap Company and a stockholder therein.

It is believed that the decision in this case is governed by the practice laid down in the case of Dow v. Des Jardins, (C. D., 1905, 526; 119 O. G., 1923,) in which it was held that in order that printing may be dispensed with under Rule 162 on the ground of poverty it must not only be shown that the corporation which owns the invention in interference is financially unable to print the record, but it must be shown also that the parties interested who would be the real beneficiaries from any decision dispensing with printing are unable to furnish the requisite amount of money.

The showing in this case is deficient in that it fails to show that the parties interested are financially unable to print the record. The affidavit of Werner, who is the president of the assignee company, as above stated, states that

Futhermore, deponent says that he is financially unable to undertake the said printing without great sacrifice to his interests or to substantially contribute toward the same.

This is not a statement that the affiant is actually unable to substantially contribute toward the printing of the record, but that he cannot do so without great sacrifice to his interests. The rule which provides for dispensing with the printing of the record in cases of poverty does not contemplate relief in a case where it is merely inconvenient to print; but it must appear that the parties interested are actually unable to furnish the money for this purpose. The showing is insufficient also in that it fails to set forth the actual assets of the company or of the stockholders who are interested therein.

It is contended by Hammer that certain parts of the testimony are objectionable in that they are irrelevant and immaterial, that the record was unduly enlarged by improper cross-examination, and that in any event he should be relieved from printing such parts of the record; but a motion to dispense with the printing of such parts of the record is not a proper way to take advantage of the objection made. The alternative relief prayed for was properly denied.

The decision of the Examiner of Interferences is affirmed.