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COMMISSIONER OF PATENTS,
THE YEAR 1889.
EX PARTE KING.
Decided December 17, 1888.
46 O. G., 119.
1. EXCLUSIVE PROPERTY IN EMBLEMS USED BY SOCIETIES.
The fact that the Grand Army of the Republic have adopted a certain design for their badge, or for the letter-head of writing-paper used by them, does not secure to such organization such exclusive property in the particular representation as would deprive an applicant who has complied with all the requirements of the statute of his right to register the same as a Trade-Mark. It is well settled that emblems which have been used by societies possess no sancity or sacredness which precludes their being used and applied as Trade-Marks.
2. TRADE-MARKS WHICH EMBELLISH.
The objection of the Examiner that the Trade-Mark embellishes the paper is not approved. It may be said that scarcely any Trade-Mark can be applied to paper without incidentally embellishing it. If the design is a legitimate subject of a Trade-Mark and is not prohibited by law, the fact that it incidentally embellishes the page on which it appears caunot deprive it of its lawful quality as a Trade-Mark.
3. REPRESENTATIONS PATENTED AS DESIGNS NOT BARred from REGISTRATION AS TRADE-MARKS.
The fact that the Grand Army of the Republic have previously obtained a Design patent for this representation, the term of which has expired, does not constitute a legitimate bar to the employment of this design as a Trade-Mark in commerce with foreign nations. The mere fact that the organization originated the design would make no difference whatever if the design has been donated to the world to be used in all the ways of which it is capable. The Grand Army of the Republic retained no proprietary right after the term of their Design patent expired. There is no property in the design itself vested in any one. Any person may apply the design as a Trade-Mark to a certain class of merchandise, and when thus applied it acquires the quality of property and becomes vested in him who first makes such new and distinct application of the design, and registration will
be granted, provided the applicant has complied with all the requirements of the statute and the mark is used in commerce with foreign nations.
4. OFFICE BOUND BY THE Оath of APPLICANT.
The Patent Office has not the means to investigate the question whether the applicant in the present case is simply seeking to obtain the guise of security round his Trade-Mark, when he really means to use it as an attractive embellishment for a particular class of persons in this country. The Office is bound by the oath of the applicant, and such a question as the above must be settled by the courts.
APPEAL from Primary Examiner.
TRADE-MARK FOR WRITING-PAPER.
APPLICATION of David King filed May 14, 1888.
Mr. H. A. Toulmin for the applicant.
Applicant has presented for registration as a Trade Mark an exact representation of the well-known badge of the Grand Army of the Republic, which he proposes to use as a water-mark on writing-paper. HALL, Commissioner:
Applicant has presented as his Trade-Mark for writing-paper a design, which he uses as a water-mark, consisting, essentially, of the letters "G. A. R." and the representation of an eagle, a flag, and a star. It is proper to add that this design, which the applicant claims to have applied to his goods as a Trade-Mark, is an exact representation of the well-known badge of the Grand Army of the Republic. Although the applicant in his argument has attempted to draw some distinctions between the Trade-Mark exhibited by him and the badge of the Grand Army of the Republic, there can be no doubt that the similarity is such that the distinctions alluded to make no difference whatever.
This application for registration has been refused by the Examiner, for the reason that the design has been heretofore adopted and employed by the Grand Army of the Republic upon badges worn by its members, and has been printed as a letter-head upon the writing-paper used by that organization in its correspondence. The Examiner has also insisted that this design, when applied by way of a water-mark upon the paper, embellishes and consequently enhances the value of it, and this, having another use than that of a Trade-Mark, is not the proper subject of a Trade-Mark registration. It is also proper to add that heretofore this design was patented as a Design, but the term for which this security was obtained has expired, so that it is no longer protected. No objection is made to its registration on account of the fact that it is incorporated in the paper as a water-mark in the process of manufacture, for it is conceded that the water-mark is one of the ancient and wellknown means of applying a Trade-Mark to writing paper, and no reason is conceived for objecting to it on that ground. The question then arises