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10 F.(20) 646 3. Trade-marks and trade-names and unfair marks of the two parties in this case are

competition 43-Cigarette holders and like merchandise held not possessed of same de identical, the only question here is whether scriptive properties” as cigarettes, within these marks are applied to goods of the Trade-Mark Act.

same descriptive properties, within the meanPipes, cigar and cigarette holders, pouches, ing of the statute. tobacco bags, humidors, and cigar and cigarette [1] We have ruled that two trade-marks containers held not possessed of same "descriptive properties” as cigarettes, within meaning may be said to be appropriated to merchanof Trade-Mark Act 1905, $'5 (Comp. St. š dise of the same descriptive properties, in 9490), so as to prevent registration.

the statutory sense, when the general and

essential characteristics of the goods are the Appeal from Commissioner of Patents.

same; that is, where there is such a sameness Proceeding by Samuel Gordon for regis- in the distinguishing characteristics as to be tration of trade-mark, opposed by the Amer- likely to result in confusion in the trade and ican Tobacco Company, Inc. From a deci- deception of the public. · Phænix P. & V. sion of the Commissioner of Patents, hold- Co. v. John T. Lewis & Bro., 32 App. D. ing that goods of respective parties, except in C. 285. Under this interpretation, we have one particular, did not possess the same de- denied the right of registration where the scriptive properties, and granting registra- goods of the respective parties have been tion, both parties appeal. Affirmed on ap- capable of being applied to the same general peal of opposer; reversed on appeal of ap- use. Thus, in N. Wolf & Sons v. Lord & plicant.

Taylor, 41 App. D. C. 514, we held that T. J. Johnston, of New York City, for hosiery and knitted underwear were goods of American Tobacco Co.

the same descriptive properties, since their E. M. Kitchin, of Washington, D. C., for essential characteristics were similar and Gordon.

both were used as articles of clothing. And Before MARTIN, Chief Justice, ROBB,

in Anglo-American Incand. L. Co. v. GenAssociate Justice, and SMITH, Judge of the eral Elec. Co., 43 App..D. C. 385, gas mantles United States Court of Customs Appeals. be capable of the same general use and of

and incandescent electric lamps were held to ROBB, Associate Justice. Appeal from the same descriptive properties. a decision of the Patent Office, in a trade- We now are asked to go a step farther, and mark opposition proceeding, dismissing in rule that goods capable of a conjoint use pospart and sustaining in part the opposition to sess the same descriptive properties. In our the registration by the party Gordon of the view, however, the statute does not permit words "Pall Mall” as a trade-mark for pipes, of such an interpretation. Whether the qualcigar and cigarette holders, pouches, tobacco ifying words, "goods of the same descripbags, humidors, and cigar and cigarette con- tive properties," aptly express the legislative tainers.

intent, is not for us to determine. The statLong prior to the adoption of this mark ute must be taken as it is found, and, when by Gordon, the American Tobacco Company so interpreted, we see no escape from the had adopted and very extensively used the conclusion that cigarettes, pipes, and tobacmark on cigarettes, and contends that this co containers are goods of different descripuse also had extended to cigarette contain- tive properties.

The Examiner ruled that cigarettes and [2] Several trade-mark infringement and the goods to which applicant's mark is ap- unfair competition cases have been cited by plied are goods of different descriptive prop- the opposer; but, as we many times have erties, within the meaning of the Trade-Mark suggested, such cases are not pertinent to a Act, and that opposer's use of the mark in statutory proceeding like the present. The connection with cigarette containers was not registration of this mark will not deprive a trade-mark use. The Assistant Commis- the opposer of any rights it may have in an sioner agreed with the Examiner, except as unfair competition suit. to cigarette holders, with respect to which [3] We agree with the tribunals of the Pathe sustained the opposition.

ent Office that the use by the opposer of cigThe Trade-Mark Act of 1905 (33 Stat. arette containers was not a trade-mark use, 724, § 5 (Comp. St. § 9490]), prohibits the but we are unable to follow the Assistant registration of trade-marks identical with or Commissioner in his ruling that cigarettes deceptively similar to a known trade-mark, and cigarette holders are goods of the same "and appropriated to merchandise of the descriptive properties. They are no more same descriptive properties.” Since the similar, in this sense, than tobacco and pipes

ers.

would be. It results that the decision is af- 0. J. Roberts, of Philadelphia, Pa., and firmed as to appeal No. 1765, and reversed Atlec Pomerene, of Cleveland, Ohio, for as to appeal No. 1766.

the United States. Affirmed as to No. 1765.

Levi Cooke and G. R. Beneman, both Reversed as to No. 1766.

of Washington, D. C., and H. A. Wise, of New York City, for appellee.

Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.

UNITED STATES v. FALL.

MARTIN, Chief Justice. This is an ap

peal by the United States from a judgment (Court of Appeals of District of Columbia. Submitted November 3, 1925. Decided De

of the lower court, sustaining a plea in cember 7, 1925. Motion for Rehearing or abatement and quashing an indictment, upon Modification of Opinion and Judgment De- the ground that certain unauthorized pernied December 19, 1925.)

sons were present at the proceedings of the No. 4362.

grand jury when the charge was considered

and the indictment found. 1. Grand jury Ow34—Indictment for bribery

The indictment in question followed aftin connection with government oil leases held

er an investigation made by the committee not vitiated by presence of assistant to At. torney General in grand jury room when

on public lands and surveys of the United matter was considered.

States Senate concerning various oil leases Joint Resolutions of February 8, 1924, and and a certain contract affecting the Naval February 27, 1924, providing for appointment Petroleum Reserves of the United States. of special counsel to prosecute suits for can

These purported to have been executed by cellation of government oil leases, and certain criininal prosecutions, though effective to de

the government through certain public ofprive Attorney General of control which he ficers, among whom was the appellee, Albert would ordinarily have over such litigation, un- B. Fall, then Secretary of the Interior. As der Rev. St. $$ 359, 362, 363 (Comp. St. $$ a result of the investigation Congress pass533, 537, 538), and Act June 30, 1906 (Comp. St. § 534), held not intended to deprive district

ed the Act of February 8, 1924, containing attorneys and special assistants to Attorney the following resolution, to wit: General of power which they otherwise posses- “Resolved further, that the President of sed, under Rev. St. $ 771 (Comp. St. § 1296), the United States, be, and he hereby is, auCode D. C. SS 183, 932, and Act June 30, 1906, to take part in proceedings before grand jury,

thorized and directed immediately to cause and indictment for bribery in connection with suit to be instituted and prosecuted for the execution of such leases was not vitiated by annulment and cancellation of the said leaspresence of special assistant to Attorney Gen

es and contract and all contracts incidental eral with grand jury when matter was considered and indictment returned.

or supplemental thereto, to enjoin the fur

ther extracting of oil from the said reserves 2. Criminal law em 280(2)-Absence of par- under said leases or from the territory cov

ticular denial in plea of abatement held to ered by the same to secure any further apjustify inference of fact not denied.

propriate incidental relief, and to prosecute In prosecution for bribery in connection with execution of government oil leases, fail

such other actions or proceedings, civil and ure of plea in abatement on ground that pres- criminal, as may be warranted by the facts ence of unauthorized person, namely, a special in relation to the making of said leases and assistant to the Attorney General, with the

contract. grand jury, vitiated indictment, to deny that such special assistant was acting under direc

“And the President is further authorized tion of special counsel appointed under Joint and directed to appoint, by and with the Resolutions of February 8, 1924, and Febru- advice and consent of the Senate, special ary 27, 1924, to conduct such litigation, justi- counsel who shall have charge and control of fied an inference of such fact.

the prosecution of such litigation, anything Appeal from Supreme Court of District in the statutes touching the powers of the of Columbia.

Attorney General of the Department of Jus

tice to the contrary notwithstanding." Sen. Albert B. Fall was charged with receiv- J. Res. 54, Pub. Res. 4, 68th Congress, 43 ing a bribe. From the judgment sustaining Stat. 5. a plea in abatement and quashing the in- Afterwards, on February 27, 1924, Condictment, the United States appeals. Re- gress passed an act appropriating funds for versed and remanded for further proceed- the expenses of the contemplated litigation. ings.

This enactment concluded as follows:

10 F.(20) 648 "Any counsel employed by the President ney General with the grand jury, while the under the authority of this resolution shall charge in question was under consideration, be appointed by and with the advice and was unauthorized and vitiated the indictconsent of the Senate, and shall have full ment. The defendant contended that, by power and authority to carry on said pro- the force and effect of the following proviceedings, any law to the contrary notwith- sions of the Acts of February 8 and 27, standing.” H. J. Res. 160, Pub. Res. 8, 1924, to wit, that the special counsel "shall 68th Congress, 43 Stat. 16.

have charge and control of the prosecution Between the dates respectively of these of such litigation, anything in the statutes two enactments, Atlee Pomerene and Owen touching the powers of the Attorney GenJ. Roberts, attorneys at law, were duly ap- eral of the Department of Justice to the pointed by the President, by and with the contrary notwithstanding," and "shall have advice and consent of the Senate, to serve as

full power and authority to carry on said special counsel for the United States in the proceedings, any law to the contrary notprosecution of said litigation. They accept- withstanding,” the prior general statutes reed the appointment, and acted as such spe- lating to the authority of the Attorney Gencial counsel at the times hereinafter referred

eral and other law officers of the government to.

to act as counsel for the United States, were Subsequently, said Atlee Pomerene and pro tanto superseded in respect to litigation Owen J. Roberts, together with Oliver E. of this character, and that there was vested in Pagan, an attorney at law, were "specially the special counsel appointed under the acts retained” by the Attorney General of the

the sole duty and power to represent the United States, to serve as special assistants

government in all such litigation, including to the Attorney General, under the author- grand jury proceedings, to the exclusion, not ity of the Department of Justice, to assist

only of the Attorney General, but of all oth

er law officers of the government. He in the trial of the cases growing out of the

claimed accordingly that the participation proceedings above referred to, and were spe

of the district attorney and the special ascifically directed to conduct, in the District of Columbia and in any other judicial dis- sistant to the Attorney General in the grand trict where the jurisdiction thereof lies, any and vitiated the indictment.

jury proceedings was unauthorized by law, kind of legal proceedings, civil or criminal,

The lower court held that Peyton Gorincluding grand jury proceedings, which district attorneys were authorized by law to don, as district attorney, was entitled by law

to take part in the proceedings of the grand conduct. It was stipulated by the Attorney jury, but that the presence of Oliver E. General that Atlee Pomerene and Owen J. Pagan as special assistant to the Attorney Roberts should receive no compensation un

General at the proceedings was unauthorder this appointment, other than that which ized. Upon that ground the court sustained should be paid them as special counsel afore- the plea in abatement, and quashed the insaid, and that Oliver E. Pagan should re

dictment. This appeal followed. ceive no compensation, except such as should

[1] It is conceded that the presence of an be paid him as special assistant to the Attor- unauthorized person with the grand jury ney General in anti-trust matters under an during the consideration of a charge would appointment in effect since August 1, 1919. invalidate any indictment thereupon found,

Thereupon said Atlee Pomerene, Owen J. but in this case it is our opinion that not Roberts, and Oliver E. Pagan, together with only the special counsel, but also the district Peyton Gordon, United States attorney for attorney and the special assistant to the the District of Columbia, appeared for the Attorney General, if acting under the digovernment before a grand jury of the Dis- rection, charge, and control of the special triet of Columbia, and took part in its pro- counsel, were authorized to take part in the ceedings with reference to said charges. grand jury proceedings. We need not disThe grand jury then returned the indictment

cuss the right of the special counsel, as such, in question, charging Albert B. Fall with to take part in the proceedings of the grand receiving a bribe while acting as Secretary jury, since that is conceded by the appellee of the Interior with reference to said leases and furnishes the basis of his contention. and contract.

Their subsequent appointment as special asThe defendant filed a plea in abatement, sistants to the Attorney General for the purclaiming, inter alia, that the presence of Pey- pose of these proceedings did not detract ton Gordon as district attorney and Oliver from the authority already possessed by E. Pagan as special assistant to the Attor- them.

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It cannot be disputed that the general $ 362 (Comp. St. § 537). He is authorized statutes which were in force at the date of to employ and retain, in the name of the the special acts invested the United States United States, such attorneys at law as he attorney for the various districts, including shall think necessary to assist the district the District of Columbia, with authority to attorneys in the discharge of their duties. appear before grand juries and conduct Rev. St. § 363 (Comp. St. § 538). He may criminal prosecutions within their respec- in person conduct any kind of legal protive districts, and also to prosecute within ceedings, civil or criminal, including grand their districts all civil actions in which the jury proceedings, which district attorneys United States are concerned. Rev. St. § 771 are authorized by law to conduct. Act June (Comp. St. § 1296); Code D. C. $$ 183, 30, 1906 (34 Stat. 816 [Comp. St. $ 534]). 932. At the same time it was provided that The provisions of the special acts exany attorney specially appointed by the At- pressly deprive the Attorney General of contorney General under any provision of law, trol over litigation of this character, and when thereunto specifically directed by the vest the same in the special counsel. They Attorney General, was entitled to conduct contain no express reference, however, to any kind of legal proceedings, civil or crim- the district attorneys or other authorized inal, including grand jury proceedings, law officers of the United States, nor do which district attorneys were authorized by they by implication make it unlawful for law to conduct. Act June 30, 1906 (34 these officers to continue in the performance Stat. 816 [Comp. St. § 534]). It is clear of their usual statutory duties, subject, howthat under these statutes the district attor- ever, to the charge and control of the speney and the special assistant to the Attorney cial counsel, instead of the Attorney GenGeneral were fully authorized to take part eral, in this class of cases. Such precedure in the grand jury proceedings now in ques. would not amount to an interference by tion, unless denied that right by the special the Attorney General or other officers. with provisions of the Acts of February 8 and the power and control with which the spe27, 1924.

cial counsel were invested. If Congress had Those acts authorized the prosecution on intended to prohibit and exclude all district behalf of the United States of certain class- attorneys, wherever located, and all other es of litigation, including both civil and authorized law officers of the government, criminal proceedings, and provided for the from appearing or taking any part whatappointment of special counsel, who should ever in either the civil litigation or criminal have charge and control of the prosecution proceedings contemplated by the acts, even thereof, anything in the statutes touching if acting under the charge and control of the powers of the Attorney General of the the special counsel, it is reasonable to beDepartment of Justice to the contrary not- lieve that apt terms would have been emwithstanding, or any law to the contrary ployed to express such intent. The acts do notwithstanding. These special provisions not express that intent, nor do they expressmust prevail over the prior general statutes, ly repeal any prior statute or part thereof. in so far as a repugnancy exists between In view of the rule that repeals by implicathem. We think, however, that the repug- tion are not favored, the effect of the spenancy extends no farther than is necessary cial provision should not be enlarged by to deprive the Attorney General and other labored construction. Wood United law officers of the government of the charge States, 16 Pet. 342, 10 L. Ed. 987; Henderand control over thi class of litigation, son's Tobacco, 11 Wall. (78 U. S.) 652, 657, such as might exist under the general stat- 20 L. Ed. 235; Wilmot v. Mudge, 103 U. S. utes, and vest that authority in the special 217, 26 L. Ed. 536; Frost v. Wenie, 157 U. counsel.

S. 46, 15 S. Ct. 532, 39 L. Ed. 614. Full Ordinarily the Attorney General would force and effect is given to the provision have charge and control for the govern- when the special counsel are assured of the ment over the prosecution of such litigation. charge and control over this class of litiUnder general statutes he is entitled to con- gation, without interference by the Attorduct in person any case in any court in ney General or any other authority. which the United States are interested, or The special acts, moreover, were designed he may direct the Solicitor General to do so. to promote the effective prosecution of the Rev. St. § 359 (Comp. St. § 533). He is proposed litigation, and it was known to given general superintendence and direction Congress that the assistance of district atover the district attorneys as to the dis- torneys within their various districts, and charge of their respective duties. Rev. St. of the other authorized law officers of the

v.

10 F.(20) 651 government, might be of great service to The indictment charges the appellees, Edthe special counsel in discharging the duties ward L. Doheny and Edward L. Doheny, Jr., imposed upon them.

with giving a bribe to Albert B. Fall, while It is contended that the congressional acting as Secretary of the Interior, to influproceedings and comments, contemporaneous ence his official action respecting certain oil with the enactment of the acts, tend strong- leases and contracts then pending before him. ly to sustain the construction claimed by the The defendant filed various pleas in abateappellee. We do not think, however, that ment, which were followed by a special trathese sources of information are sufficiently verse and demurrer. The lower court suscertain respecting the present issue to over- tained the plea, and quashed the indictment. come the natural interpretation of the acts. The government appealed. [2] It is not denied by the plea in abate- The case presents the same issues as those ment that the district attorney and the spe- involved in the appeal of United States v. cial assistant to the Attorney General ap- Albert B. Fall (Suit 4362)

App. D. C. peared before the grand jury in this case 10F.(20) 648. The two cases accordunder the direction, charge, and control of ingly were argued and submitted to the court the special counsel. In the proper construc- together. tion of the plea, the absence of such a denial For the reasons which are set out in our justifies an inference of the fact. Hillman opinion this day handed down in the former v. United States, 192 F. 264, 112 C. C. A. case, we reverse the judgment of the lower 522; United States v. Silverthorne (D. C.) court in this case, and remand the cause for 265 F. 859. Accordingly we hold that the further proceedings not inconsistent thererecord fails to disclose the presence of any with. unauthorized person at the grand jury proceedings.

The judgment of the lower court is reversed, and the cause is remanded for further proceedings not inconsistent herewith.

SMITH et al. v, LAW et al. (Court of Appeals of District of Columbia. Submitted November 4, 1925. Decided

December 7, 1925.)

No. 4234.

UNITED STATES V. DOHENY et al. Judgment Cm693-Judgment in partition ac

tion held res judicata in subsequent suit to (Court of Appeals of District of Columbia.

quiet title. Submitted November 3, 1925. Decided De

Where husband's interest in realty, conveycember 7, 1925. Motion for Rehearing or Modification of Opinion and Judgment Denied ed to him and his wife as joint tenants, was

sold under writ of fieri facias to one who obDecember 19, 1925.)

tained a partition sale of the property in suit No. 4363.

against wife, held, in subsequent action by hus

band and wife against purchaser at partition Appeal from the Supreme Court of the tion suit was res judicata of question whether

sale and others to quiet title, decree in partiDistrict of Columbia.

plaintiffs• had been seized with an estate by the 0. J. Roberts, of Philadelphia, Pa., and entireties, such that the estate of neither was

subject to execution or partition. Atlee Pomerene, of Cleveland, Ohio, for the United States.

Appeal from the Supreme Court of the F. J. Hogan, of Washington, D. C., for District of Columbia. appellees.

Suit by Ruth R. Smith and another Before MARTIN, Chief Justice, and against Henry T. Law and others. Decree ROBB and VAN ORSDEL, Associate Jus- for defendants, and plaintiffs appeal. Aftices.

firmed.

J. L. Tepper, of Washington, D. C., for MARTIN, Chief Justice. This is an appeal from a judgment of the lower court,

appellants.

G. C. Gertman, of Washington, D. C., fo• sustaining a plea in abatement and quashing

appellees. an indictment, upon the ground that certain persons unauthorized by law were present at Before MARTIN, Chief Justice, and the grand jury proceedings when the charge ROBB and VAN ORSDEL, Associate Juswas considered and the indictment found. tices.

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