being, if necessary, allowed a term to. eliminate its objections it renders as soon as possible its desision.

5. Before deciding whether or not to publish the application the Appeal Department may order the Examiner to undertake a further examination.

6. The Examiner is, if necessary, heard by the Application Department.

7. If an application has been filed for the same invention in another country, the applicant shall at the request of the Examiner state the objections, which have been raised against his application for patent during its prosecution in that country.

Art. 24. 1. If the Application Department holds that the application is not fit for whole or partial publication, it decides not to publish the application. In the contrary case it decides to publish the application.

2. The applicant is informed of the decisions of the Application Department within fourteen days and the grounds on which the decision is based, if the application is not wholly published, shall be stated.

Art. 24a. 1. Within 3 months after the final decision the applicant may appeal with the Patent Office by lodging a statement of appeal with the grounds thereof.

2. On the appeal a decision shall be given by an Appeal Department of the Patent Office, after the applicant having been heard or at least being duly summoned. Before deciding the Appeal Department may order the examiner to undertake a nearer examination.

3. The members who were members of the Appeal Department and the member, who was in charge of the preliminary examination, must not be a member of the Appeal Department, mentioned in the preceding paragraph.

4. If necessary the Examiner is heard by the Application Department.

5. The decision of the Appeal Department is communicated to the applicant within 14 days.

Art 25. 1. The application is published as soon as appeal can no more be filed or the applicant has resigned the right of appeal, by advertisement of the decision to this effect in a journal to be published by the Office of the Industrial Property.

2. If the applicant notifies his desire accompanied by a certificate that the fee of f 25-has been paid with the Office for the Industrial Property, the Patent

Office will suspend the publication for a term not exceeding 3 months.

3. During 4 months from the date of the journal, referred to in the 1st paragraph, in which the publication of the application is advertised, such application and her accompanying specification, drawings, models and samples are open to public inspection at the Patent Office.

4. Within such period any person may oppose the grant of the patent applied for, by lodging at the Patent Office a statement of objections with a statement of grounds, which must set out clearly the name and residence of the opponent, and must be signed by him or his written agent. Such agent shall represent the opponent during the entire procedure in connection with the opposition, except in cases of substitution or recall of the agent. If the opponent be not resident within the Kingdom in Europe, he must elect within the Kingdom domicile with an agent.

The grounds of objection must rely on the provisions of this Act, and can, as far as they concern one having a direct interest as meant in the art. 9, 10 and 11, only be made by him.

5. Any inventor, who by virtue of the provisions of the third paragraph of Art. 10, requests that his name shall be mentioned in the patent, shall apply accordingly within the above-mentioned period to the Patent Office. The provisions of the preceding paragraph as to the agent of the inventor and the election of domicile by an inventor, not resident within the Kingdom in Europe, shall apply to such request.

Art. 26. 1. If statements of objection or requests as referred to in art. 25 or 32 have been filed, they shall be handed to the Department, which ordered the publication. The Application Department is completed to three members if it consisted of one member. This Department shall afford the applicant an opportunity of inspecting those statements or requests and decides, after the expiry of the term mentioned in art. 25 and after having heard the applicant, the opponents and the petitioners or at least having duly summoned them, regarding the grant in whole or in part of the patent, and regarding the requests.

2. If the objection to the grant of a patent be raised on the ground that the opponent is entitled to a patent under the provisions of Art. 9 or Art. 10, or is entitled to a joint-proprietorship under the provisions of Art. 11, whether for

the whole subject matter of the original application, or for such part as may form the subject of an independent patent, the Department may examine said objection and in the event of the objection being sustained, it shall grant the patent applied for, in whole or in part, to the opponent, or grant to him the jonit rights to which he is entitled in both cases if the opponent has notified his desire to that effect before the Patent Office has decided upon the grant. This decision shall not prejudice a claim under the provisions of Art. 53.

3. The decision of the Department, which shall contain its grounds, shall be notified in writing within 14 days to the applicant, the opponents and the peti

tioners.

4. If during the term, mentioned in Art. 25, no objections or requests as referred to in art. 25 or 32 have been lodged the patent shall be considered to have been granted in the form as it was published.

Art. 27. 1. Within three months after the final decision the applicant, the opponents and the petitioners may lodge at the Patent Office a statement of appeal, stating reasons, and signed by them or by their written agents. The Patent Office shall then afford the other interested parties an opportunity of learning the contents of the statement.

2. An Appeal Department of the Patent Office shall give a decision regarding the appeal, after having heard the applicant, the opponents and the Petitioners, or at least after having duly summoned them. As regards the constitution and the decision of this Department, Art. 24a is to be applied.

Art. 28. 1. The patent granted upon an application, which has laid for public inspection, according to Art. 25 is dated and shall take effect, except as provided by Art. 44 from the day following that on which the term, mentioned in Art. 25 expired, if no objections or requests have been lodged or if they have been lodged on the day after that on which the term, mentioned in art. 27 expired, without any appeal having been entered or that the rights to appeal has been resigned by all who could do so or after appeal having been entered the day after that on which the patent was granted by an Appeal Department.

2. Within fourteen days from such

date the grant of the patent shall be entered with a serial number in a public register provided for that purpose by the Patent Office, and this grant is advertised as soon as possible in the Journal, mentioned in Art. 25. The patent accompanied by the specification is published as separate enclosure in the Journal, meant in Art. 25, after the amount of f 60.-, mentioned in Art. 35 having been paid.

3. Within fourteen days from the date of the Journal referred to at the end of the preceding paragraph, a certificate of his rights shall be issued by the Patent Office to the person to whom the patent has been granted.

4. If the rejection of an application be no longer open to appeal, or after an appeal has been rejected by the Patent Office, an entry thereof shall be made within fourteen days in a public register provided for the purpose by the Patent Office, and this entry shall be published as soon as possible in the Journal referred to in Art. 25.

Art. 29. Further regulations for executing the provisions of this and the following Part shall be determined by General Rules, and such Rules shall determine amongst other matters the following:

a. the requirements with which applications and documents relating thereto must comply;

b. the manner in which, according to Art. 22, the date, referred to in that article, shall be determined;

c. The manner in which the applications, under the provisions of Art. 22, shall be entered in the registers of the Patent Office;

d. the name, form and method of publication of the Journal referred to in Art. 25;

e. the laying open of applications to public inspection, in accordance

with the provisions of Art. 25; f. the forms of the statements referred to in Art. 25, and of appeal referred to in Art. 27; the way in which interested parties shall be informed thereof, and the form of the certificate, referred to in Art. 28, paragraph 3;

g. the conditions for the recognition of the agent of the applicant or of. the opponent.

(Continued in January Issue)

THE S. S. WHITE DENTAL MANUFACTURING CO. V. JAMES MACDONALD

Ms. D. October 31, 1921.

MR. CLIFTON C. HALLOWELL for The S. S. White Dental Manufacturing Company.

teeth" is clearly and readily distinguishable from opposer's mark ard this difference becomes more clear, if possible, when the wrappers of the parties are examined.

Opposer indicates that it has extensively advertised its goods at great expense. I have examined

FENNING, Asst. Commissioner:

This is an appeal from the decision of the Examiner of Interferences dismissing an opposition brought by The S. S. White Dental Manufacturing Company against an application of James Macdonald to register as a trade-mark for tooth paste "Whiteeth," somewhat fancifully printed.

Opposer relies upon its registration of "S. S. White" and additionally endeavors to show a secondary meaning for its trade mark. Opposer admits that all of its goods have been marked "S. S. White" but urges that in common use it is referred to as "White's Tooth Paste." There is some evidence to this effect. Opposer, in its registration, has elected to indicate as its mark "S. S. White." This is different from the single word "White" just as Burg Brau was distinguished from "Burg" in Berghoff Brewing Assn. v. Popel-Giller Co., Inc. 287, O. G. 405. Opposer coins the phrase "secondary trade mark by appellation" in an endeavor to indicate that its mark is the single word "White," but I am unable to follow this line of reasoning. It is clear that applicant's mark "Whi

offered in evidence and find that each of them makes prominent and emphasizes, not the word "White" but the mark "S. S. White."

I am unable to find that applicant's mark would be likely to cause confusion and the opposition must therefore be dismissed.

The decision of the Examiner of Interferences is affirmed.

H. O. WILBUR & SONS v. UNIVERSAL CANDY COMPANY

Ms. D. Oct. 31, 1921. Similarity of Marks-A mark consisting of a cherub seated to the left of a globe and a secondTM cherub to the right of the globe holding a box marked "Universal" held not deceptively similar to a mark consisting of a cherub

carrying a quiver of arrows and a bow holding a cup and saucer, the cup bearing the word "Wilbur."

FENNING, Asst. Commissioner:

The applicant sought to register a mark consisting of a seated cherub to the left of a globe, to the right. of which appeared a standing cherub holding in one hand a box marked "Universal."

Opposer relied upon its registered mark (No. 69,053) consisting of a cherub carrying the usual quiver of arrows and a bow and wielding a spoon in a steaming cup upon a saucer, the cup bearing the word "Wilbur."

It was held that the only thing in common between these marks is that each includes a naked human form, and that confusion is not likely, mention being made of the prior use and registration by others of marks including cupids. One of opposer's witnesses admitted that it obtained permission from one of such prior users to use its present mark and that it distinguished the mark from the earlier one by the cup and saucer. The Assistant Commissioner said.

"This seems to be a further indication of a readily perceived distinction between opposer's mark and applicant's mark, since applicant's mark does not consist of the cupid and cup and saucer." The opposition was dismissed.

Descriptive Marks—A mark consisting of the words "Wilson's Fair Skin Soap," surrounded by a fanciful border, was held to be registrable, in view of the disclaimer of the descriptive words "Fair Skin Soap."

FENNING, Asst. Commissioner:

The applicant, Geer and Company, applied for registration of a mark consisting of the words "Wilson's Fair Skin Soap" surrounded by a fanciful border, the words. "Fair Skin Soap" having been disclaimed in the usual form.

The Examiner of Interferences dismissed the opposition but held

the applicant not entitled to registration of the mark on the theory that the descriptive matter was so prominent as to clearly dominate the mark, citing Nairn Linoleum Co. v. Ringwalt Linoleum Works, 237 O. G. 919.

The Commissioner reversed the Examiner of Interferences and granted registrations, his reasons being stated thus:

"In Beckwith v. The Commissioner of Patents, 274 O. G. 613, the Supreme Court interpreted the Linoleum Company case as holding that where the design of the trade mark is so simple as to be a mere device or contrivance to evade the law and secure the registration of non-registrable words, registration should be refused, I am unable to find that such is the case of the present mark."

ARMOUR AND COMPANY V. THE GEER DRUG COMPANY.

Ms. D. Oct. 25, 1921. Descriptive Marks-A mark consisting of the words "Wilson's "Fair Skin Cream," accompanied by a heart-shaped face, held to be descriptive and unregistrable but indicated as registrable upon the entry of a disclaimer of the words "Fair Skin Cream."

FENNING, Asst. Commissioner:

The applicant, Geer and Company, applied for registration of a mark consisting of the words "Wilson's Fair Skin Cream" accompanied by a heart-shaped face, the words "Fair Skin" having been disclaimed in the usual form.

The Examiner of Interferences dismissed the opposition but held the applicant not entitled to registration of the mark on the theory that the descriptive matter was so

prominent as to clearly dominate. the mark, citing Nairn Linoleum Co. v. Ringwalt Linoleum Works, 237 O. G. 919; 46 App. D. C. 64. The Assistant Commissioner held the mark to be objectionable for the reason that the word "Cream" is clearly descriptive, but intimated that registration would be allowed if a disclaimer of "Cream" were entered, his reasons being given thus:

"In Beckwith v. The Commissioner of Patents, 274 O. G. 613, the Supreme Court interpreted the Linoleum Company case as holding that where the design of the trade mark is so simple as to be a mere device or contrivance to evade the law and secure the registration of non-registrable words, registration should be refused. I am unable to find that such is the case of the present mark."

Ex Parte NATIONAL LIFE PRESERVER COMPANY

Ms. D. October 25, 1921

Descriptive Marks-The expression "Ever Warm Safety Suit" held to be descriptive of a life preserver suit.

FENNING, Asst. Commissioner:

The applicant sought to register a trade mark for life preservers consisting of an elliptical figure having superposed thereon the words "Ever-Warm Safety Suit." A disclaimer was entered with respect to the word "Suit."

The applicant's life preserver consisted of a suit to be worn to float a person in water. It appeared that these suits have been patented and that the patents include the words "Safety Suit" in their titles, such use of the words antedating by several years the earliest use claimed by the applicant. The pat

entees should therefore be free to employ the term to describe their patented article.

The words "Ever Warm" were. held to have a descriptive significance. The decisions holding "Ever Ready Heat," "Everfast," "Everlasting" and "Everwear" to be descriptive were cited.

The expression "Ever Warm Safety Suit" was held unregistrable as a technical mark.

MATOSSI VS. PEERLESS ORANGE JUICE COMPANY.

Ms. D. November 4, 1921 Interference - Priority Evidence Considered and the Party Matossi Held to have established priority of adoption and use of the trade mark "Orange Kist" for soft drinks.

In an interference proceeding involving a trade mark for soft drinks, the Party Matossi proved use of the mark Orange Kist in interstate commerce since April 23, 1919.

Witnesses on behalf of Peerless Orange Juice Company testified that the first production of "Orange Kiss" was made in late February, or the first part of March, 1919, and that samples were sent out, but the evidence was held insufficient to establish that orange juice bearing the name Orange Kiss was actually sold or used in interstate commerce earlier than April 23, 1919.

It appeared from the evidence that the Peerless Orange Juice Company assigned all of its right, title and interest in the trade mark Orange Kiss prior to the filing of its application for registration, and was therefore not entitled to registration under the statutes.

The Commissioner referring to the decision of the Examiner of Interferences awarded judgment in favor of Matossi.