decided having in mind the date of the registry in the country where the first petition of its registry was presented." And, whereas, this Department, as stated above, has official knowledge of the word "Aspirina" as the name of a pharmaceutical product registered in the United States in favor of The Bayer Company, Inc., on October 19, 1915, that registry being still valid and in force, it follows that, strictly adhering to the precepts in the mentioned agreement, the objection made by Ricardo More as attorney for The Bayer Company, Inc., should be duly taken into consideration, and the aforesaid petition of Rafael D. Lorie, Director of the International Drug Store Company, be definitely denied, because both the United States, where the trade mark in question is registered, and Cuba, where other persons seek to register it, are signers of the mentioned International Agreement.

Whereas, In conformity with what is provided in Article 6 of the International Agreement of Paris, March 20, 1883, "Every commercial or industrial trade mark regularly registered in the country of its origin shall be entitled to registry and protection as such in all the other countries of the Union," the American trade mark No. 106200, owned by The Bayer Company, Inc., for distinguishing an anti-rheumatic pharmaceutical product, is entitled to registry and protection in Cuba; otherwise, the solemn obligations contracted under said agreement would be flagrantly violated.

Therefore, ignoring the criterion of the mentioned Bureau and Section; in view of the quoted precepts, and exercising the powers

First-To declare that the word "Aspirina" is not a generic term, and can be used as a commercial or industrial trade mark.

Second-To admit the objection made by Ricardo More as attorney for The Bayer Company, Inc., to the petition presented by Rafael S. Lorie, Director of the International Drug Store Company, urging the registry of the trade mark "Aspirina" to be applied to a pharmaceutical product in the form of powder, and I deny said petition on the ground that the trade mark in question was known to the International Drug Store Company and the petitioner as the property of The Bayer Company, Inc., which has been sending to this island since the year 1917 a pharmaceutical product sold under the name of 'Aspirina"; furthermore, said trade mark is already and has long been registered in the United States and protected in Cuba, in conformity with the Buenos Aires Agreement of August 20, 1910.

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Third-To admit in deposit for its protection in this Republic the American trade mark No. 106200 registered in the United States by The Bayer Company, Inc., for distinguishing a cure for rheumatism in the form of tablets, and I hereby order that this resolution be communicated to all the parties concerned through their respective representatives, to the end that the corresponding duties be paid, and this, once performed, the corresponding certificate of deposit be issued.

Fourth-This resolution must be accompanied by the petition of deposit of the trade mark "Aspirina" presented by the attorney for

The Bayer Company, Inc., a certified copy of it must be attached to the petition presented by the International Drug Store Company, the decision of both cases being comprehended in this resolution.

JOSE MARIA Collantes, Secretary Agriculture, Commerce and Labor.

In the High Court of JusticeChancery Division.

Before MR. JUSTICE PETERSON. June 27th, 28th and 29th, 1921. COOKSLEY V. CROWTHORN ENGINEERING COMPANY, LTD. AND ANOTHER.

15, 1921.

Finland

Accession to the Union for the Protection of Industrial Property.

By a note dated August 2, 1921 the Government of the Republic of Finland has notified the Swiss Federal Council that it has decided, with the consent of the Parliament of the Republic to adhere to the International Convention of Paris, of March 20, 1883, for the Protection of Industrial Property, revised at Brussels, December 14, 1900, and at Washington, June 2, 1911, with its protocol (see Article 18 of the Convention).

Conforming to Article 16, Section 3 of the Convention of the Union of Paris, revised, this accession becomes effective one month after the notification made by the Swiss Government to the other Union countries; this notification having been made by circular of the Federal Council on August 20, 1921, the accession of the Republic of Finland takes effect therefore from September 20, 1921.

(Translation, La Propriété Industrielle, August 31, 1921.)

Great Britain

Infringement of Patent Restored Under Peace Regulations.

Restoration Treaty of Versailles, Article 307-Treaty of Peace Orders, 1919 to 1921— Conditions of Restoration— Validity of Restoration Order-Order held to be validCombination Claim-Parts Assembled after Restoration Order-Defendants Held to Have Infringed.

In 1913 Letters Patent were granted to C. and O. S. These lapsed on September 18th, 1917, owing to non-payment of renewal fees. On March 18th, 1920, the three years' renewal fees were accepted by the Patent Office and a certificate was granted "that by virtue of such payments the rights of the Patentees remain in force," and on the next day the ComptrollerGeneral issued an order extending the time within which the renewal fees could be paid and ordering the fee to be accepted and recorded in the Register of Patents subject to conditions protecting users after September 18th, 1917, and before the date of the Order. Between the dates of lapse and of restoration the C. E. Co. manufactured parts of the patented combination. After the restoration date they assembled machines mainly of parts already in stock at the restoration date. In an action for infringement, the C. E. Co. pleaded (1) that the Restoration Order was invalid as not complying with cer

tain provisions of the Patent Rules, 1908 and (2) that the alleged infringement was in the void period..

Held, that the Treaty of Peace Act, 1919, and the Treaty of Peace Order, 1919, Section 1, gave Article 307 of the Treaty of Versailles the force of Statute, and that the Restoration Order was not made under the Patents and Designs Act, 1907, and that the Patent Rules, 1908, did not apply, and that the

Order was valid; also that the infringement was after the Restoration Order and was not protected by its terms. An injunction was granted and other consequential relief, and a certificate that the Partículars of Breaches had been proved and a certificate that the validity of the Patent had come in question were also granted. (38 R. P. C. 294.)

On November thirtieth, 1918, an examiner of the Patent Office declared that the trade-mark was no longer valid and ordered its cancellation. From this decision no appeal was taken and that feature of the case therefore falls out of consideration.

LIVINGSTON GIFFORD, C. G. HEYLMUN and EDWARD S. ROGERS for the plaintiff.

LAURENCE A. JANNEY, for the defendant.

LEARNED HAND, D. J.: The issues in this case do not I think depend upon the decision in Singer v. June, 163 U S. 169, so much as the defendant supposes. That case decided no more than that the existence of a patent during the period when the goods became known to the public might be a controlling element in determining whether the

name under which they were sold indicated a single source of origin. Since then courts have several times said that the name of goods protected by patent might in fact indicate not only the kind of goods they were, but as well that they emanated from a single source, President Suspender Co. v. McWilliams, 238 Fed. R. 159, Hughes v. Alfred H. Smith Co., 209 Fed. R. 37, Scandinavian Belting Co. v. Asbestos etc. Co., 257 Fed. R. 937, 960, Searchlight Gas Co. v. Presto-Lite Co., 215 Fed. R. 693, 695. So here it might be that the name, "Aspirin," in fact had come at once to describe the drug in question and also its origin from a single source. If it did, that would be enough to justify some protection, since the identity of the source need not be known, Birmingham etc. Co. v.

Powell, (1897), App. Cas. 710, Wotherspoon v. Currie, L. R. 5 H. L. 508. Indeed the whole law of "secondary meaning" is built upon that presupposition.

The single question, as I view it, in all these cases is merely one of fact; what do the buyers understand by the word for whose use the parties are contending?

If they understand by it only the kind of goods sold, then, I take it, it makes no difference whatever what efforts the plaintiff has made to get them to understand more. He has failed, and he cannot say that, when the defendant uses the word, he is taking away customers who wanted to deal with him, however closely disguised he may be allowed to keep his identity. So here the question is whether the buyers merely understood that the word, "Aspirin," meant this kind of drug, or whether it meant that and more than that, i. e., that it came from the same single, though if one please anonymous, source from which they had got it before. Prima facie, I should say, since the word is coined and means nothing by itself, that the defendant must show that it means only the kind of drug to which it applies. The fact that it was patented until 1917 is indeed a material circumstance, but it is not necessarily controlling.

In deciding that issue I cannot, however, approach the question formally, as the plaintiff wishes; as, to say that there was a user before the patent, and therefore the patent could not forfeit this property right, or that there was never any intention to abandon the trade-mark and so it must have continued. No doubt, it is convenient for many purposes to treat a trade-mark as property, yet we shall never, I think,

keep clear in our ideas on this sub

ject, unless we remember that relief always depends upon the idea that no man shall be allowed to mislead people into supposing that his goods are the plaintiff's, and that there can be no right or remedy until the plaintiff can show that at least presumptively this will result. Hanover Milling Co. v. Metcalf, 240 U. S., 403.

In the case at bar, the evidence shows that there is a class of buyers to whom the word "Aspirin" has always signified the plaintiff, more specifically indeed than was necessary for its protection. I refer to manufacturing chemists, to physicians, and probably to retail druggists. From 1899 it flooded the mails with assertions that "Aspirin" meant its own manufacture. This was done in pamphlets, advertisements in trade papers, on the packages and cartons, and by the gratuitous distribution of samples. True, after 1904 it abandoned the phrase, “Acetyl Salicylic Acid" for "monoaceticacidester of Salicylicacid," but even that extraordinary collocation of letters was intelligible to these classes of buyers who, except possibly the more ignorant of the retail druggists, were measurably versed in the general jargon of pharmaceutical chemistry. Moreover, the drug continued to be generally known by the more tolerable phrase, "Acetyl Salicylic Acid," which also adequately described its chemical organization. As to these buyers the plaintiff has therefore, I think, made out a case, at least to compel the addition of some distinguishing suffix, even though its monopoly had been more perfect than in fact it was.

The crux of this controversy, however, lies not in the use of the word to these buyers, but to the general consuming public, composed

of all sorts of buyers from those somewhat acquainted with pharmaceutical terms to those who know nothing of them. The only reasonable inference from the evidence is that these did not understand by the word anything more than a kind of drug to which for one reason or another they had become habituated. It is quite clear that while the drug was sold as powder this must have been so. It was dispensed substantially altogether on prescription during this period, and although physicians appear to have used the terms, "Aspirin" or "Acetyl Salicylic Acid" indifferently, it cannot be that such patients as read their prescriptions attributed to "Aspirin" any other meaning than as an ingredient in a general compound, to which faith and science might impart therapeutic virtue. Nor is there any evidence that such as may have seen both terms identified them as the same drug. I cannot speculate as to how many in fact did so. No packages could possibly have reached the consumer, nor was any advertising addressed to them; their only acquaintance with the word was as the name for a drug in whose curative properties they had got confidence.

In 1904, however, they began to get acquainted with it in a different way, for then all the larger manufacturing chemists began to make tablets, and the trade grew to extraordinary proportions. The consumer, as both sides agree, had long before the autumn of 1915 very largely abandoned consultation with physicians and assumed the right to drug himself as his own prudence and moderation might prescribe. In all cases, omitting for the moment the infringing product, the drug was sold in bottles labelled "Aspirin" with some indi

cation of the name of the tablet maker, but none of the plaintiff. It is probable that by far the greater part of the tablets sold, were in dozens or less, and that the bottles so labelled did not generally reach the hands of the consumer, but, even so, a not inconsiderable number of bottles of one hundred were sold, and as to the rest they were sold only under the name, "Aspirin." The consumer did not know and could not possibly know the manufacturer of the drug which he got, or whether one or more chemists made it in the United States. He never heard the name, "Acetyl Salicylic Acid." as applied to it, and without some education could not possibly have kept it in his mind, if he had. So far as any means of information at all were open to him, they indicated that it was made by most large chemists indiscriminately.

This being the situation up to the autumn of 1915, the defendant seems to me to have effectually rebutted any presumption which the coined word might carry. However, the plaintiff argues, along with this user large infringing sales of the drug were being made to consumers under the name "Acetyl Salicylic Acid." It has indeed proved that it was unable absolutely to protect the monopoly of the patent, and it is clear that large quantities were piratically sold, though, so far as this record shows, with uniform respect for its trademark. Further a good many retail druggists swore, with undoubted truth, that their customers got accustomed to the use of the phrase and could either ask for the drug or get it written out on a slip of paper and present that. I think I must accept the record as showing that this went on to a substantial,