author: LENROOT, Associate Judge.

text:
    FASHION PARK, Inc., v. THE FAIR.
    Patent Appeal No. 2734.
    Court of Customs and Patent Appeals.
    May 25, 1931.
    Clarence G. Campbell, of New York City, for' appellant.
    Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges.
   LENROOT, Associate Judge.

This is an appeal in a trade-mark opposition proceeding from a decision of the Commissioner of Patents, affirming a decision of the Examiner of Trade-Mark Interferences, dismissing the opposition of appellant and adjudging appellee entitled to the registration for whieh it filed application on August 16,1928.

Appellee’s mark consists of the notation “Fashion Row” used upon men’s, youths’, and boys’ outer clothing, and upon ladies’, misses’, and girls’ suits, coats, dresses, etc. Its application states that said mark has been used by it since August 3,1928.

The opposition is based upon prior adoption and use by appellant of the notation “Fashion Park” as a trade-mark upon men’s outer clothing, for which appellant has secured the following three registrations: No. 130,566, issued April 27, 1920; No. 131,225, issued May 4,1920; and No. 160,277, issued October 17, 1922. Each of said registrations, in addition to the words “Fashion Park,” has a representation of two men on horseback. The marks in said registrations differ in minor respects, but the words “Fashion Park” are the dominating feature of all of them.

The marks of the respective parties are-used on identical goods, viz. men’s outer clothing.

The question before us is whether the marks of the respective parties so closely resemble each other as to be likely to cause confusion or mistake in the mind of the public, or to deceive purchasers, when appropriated to men’s clothing.

The testimony shows that appellant has continuously used its mark upon men’s outer clothing for more than fifteen years, and for several years has been carrying on a very extensive national advertising campaign, using the words “Fashion Park” therein as the leading feature of such advertising; that in said advertising campaign it expends approximately $500,000 annually.

The Commissioner, in dismissing the opposition, relied upon the case of Franklin Knitting Mills, Inc., v. Kassman & Kessner, Inc., 56 App. D. C. 348, 13 F.(2d) 319, and the decision of this court in the case of Rosenberg Bros. & Co. v. Horowitz, 35 F.(2d) 784, 17 C. C. P. A. 641, as controlling his decision.

The marks involved in the Franklin Knitting Mills ease, supra, were “Fashion Knit” and “Fashion Park,” used upon hats and caps. The case of Rosenberg Bros. & Co. v. Horowitz, supra, involved the trade-mark “Fashion Park,” owned by the predecessor of the appellant here, ■ and the trade-mark “Washington Park”; both marks being used upon men’s outer clothing. In both of said cases, the marks were held not to be confusingly similar. However, in view of the differences between the marks “Fashion Knit,” “Washington Park,” and “Fashion Row,” the mark here in issue, we do not think the decisions in the above eases are in any wise controlling of- the question before us.

A ease more in point is that of Rosenberg Bros. & Co. v. Wetherby-Kayser Shoe Co., 37 F.(2d) 437, 438; 17 C. C. P. A. 794, which involved the said trade-mark “Fashion Park,” used upon men’s outer clothing, and the mark “Fashion Lane,” used on men’s, women’s, and children’s footwear, namely, shoes, slippers, etc. In the opinion in that case, this court, speaking through Presiding Judge Graham, said:

“In considering this matter [confusion or mistake] it will be borne in mind that the goods upon which the opposer uses its trademarks are men’s coats, vests, pants, and overcoats, and that the goods upon which the appellee applicant uses its mark are men’s, women’s, and children’s footwear, such as shoes, and so forth. Whether these be considered goods of the same descriptive properties or not, their similarity or lack of similarity is a very proper matter to be considered in determining whether such confusion or mistake in the mind of the public is liable to occur by the registration of the appellant’s mark.”

While the court held, in that case, that the marks “Fashion Park” and “Fashion Lane” were not so similar as to cause confusion, when applied to the goods upon which the respective marks were used, it is clear that, had said marks been used upon identical goods, as in the case at bar, a different question would have been presented.

For the reasons stated, we do not think that any prior decision of this court is determinative of the issue in the case at bar.

In considering whether the marks here in issue are confusingly similar, an important fact to be considered is that the marks are used upon identical goods.

The words “Fashion Park” suggest to the mind a park frequented by people fashionably clothed. The words “Fashion Row” suggest to the mind a street or row frequented by people fashionably clothed.

We believe that one going into a store to purchase a suit of clothes, having read an advertisement of “Fashion Park” clothes, might easily think his memory was faulty as to the word “Park” in the advertisement and conclude that a suit bearing the trade-mark “Fashion Row” was manufactured by the same party whose advertisement he had read.

In our opinion, the marks “Fashion Park” and “Fashion Row,” used upon men’s outer clothing, so nearly resemble each other as to be likely to cause confusion or mistake in the mind of. the public, or to deceive purchasers, and the Commissioner erred in dismissing the opposition and granting the application of appellee.

We are furthermore of the opinion that appellee selected the mark “Fashion Row” with the expectation of profiting by appellant’s extensive advertising of its trade-mark “Fashion Park.” We say this because there were a multitude o£.words which appellee might have selected as a trade-mark, as to which there would he no likelihood of confusion with appellant’s mark. This fact, while not determinative of our conclusion, tends to confirm it. On this point, we quote from the opinion in the ease of Guggenheim v. Cantrell & Cochrane, Ltd., 56 App. D. C. 100, 10 F.(2d) 895, 896, as follows:

“In this court, it has been repeatedly declared that there is neither legal nor moral excuse for even an approximate simulation of a well-known mark applied to goods of the same descriptive properties, and that, when an attempt to effect such simulation becomes apparent, the two marks should not be examined with a microscope to deteet minute differences, but, on the contrary, should be viewed as a whole, as the general public would view them; in other words, that the points of similarity are of greater importance than the points of difference.”

The decision of the Commissioner of Patents is reversed.

Beversed.


source: Caselaw Access Project

author: LENBOOT, Associate Judge.

license: Public Domain

text:
    In re POWELSON et al.
    Patent Appeal No. 2729.
    Court of Customs and Patent Appeals.
    May 27, 1931.
    Everett E. Kent, of Boston, Mass., for appellants.
    T. A. Hostetler, of Washington, D. C. (Howard S. Miller, of Washington, D. C., of counsel), for Commissioner of Patents.
    Before GBAHAM, Presiding Judge, and BLAND, HATPIELD, GABBETT, and LENBOOT, Associate Judges.
   LENBOOT, Associate Judge.

This is'an appeal from a decision of the Board of Appeals of the United States Patent Office affirming a decision of the Examiner, rejecting claims 8, 29, 30, 42, and 43 of appellants’ application, for lack of invention in view of the prior art.

Claims 8, 29, and 42 are illustrative, and read as follows:

“8. In equipment for stabilizing a ship wholly immersed in a fluid medium, means to change the relation to each other of the points of incidence upon the ship of the static forces of buoyancy and gravity of the ship, and a controller therefor having actuating means comprising a fluid and a container for the fluid extending in the direction in which stability is to be maintained, said actuating means being responsive to the change in pressure of the fluid against walls of its container which is consequent upon a disturbance of stability, said static forces being considered in their relation as if the ship were stationary in its said fluid medium, and the said disturbance of stability being the occurrence of such a relation which differs from a predetermined normal.”
“'29. The art of conserving lifting gas in airships having lighter-than-air gas in containers, comprising the partial filling of the gas containers of an airship with lighter-than-air gas heated to a temperature higher than that of: the surrounding atmosphere, previous to the launching of the airship at the start of a flight; the launching of the airship with its gas thus heated; and the heating and cooling of said gas during a flight of the airship, thereby increasing and decreasing the lifting power thereof.”
“42. The art of conserving and preserving purity of lifting gas in airships having lighter-than-air gas in containers,' comprising the partial filling of each of several containers of an airship with the gas; said gas, previous to the launching of the airship from its mooring, being at a temperature higher than that of the surrounding atmosphere; the filling of remaining space in the several containers by collapsible receptacles containing air; the launching of the airship, with gas thus at higher temperature adjoining receptacles containing air; the removal of air from the receptacles, permitting expansion of the gas within its containers, upon decrease of atmospheric pressure; the introduction of air and removal of air, to and from the receptacles during flight, for maintaining the gas containers fully inflated at all times; the maintaining of an excess .of pressure of the gas over the air for preventing the infiltration of air through the coverings of the gas containers into the gas; and the lowering and raising of the temperature of said gas during flight for adapting its lifting power to the changes in weight of the ship.”

The references are: Koskul, 1,047,247, December 17, 1912; Adam et al. (British), 4,408, of 1911; Olmsted (British), 154,457, of 1920; Finley, 1,426,370, August 22,1922; Finley, 1,426,369, August 22, 1922; Anderson (British), 24,199, of 1912; Boothby (British), 144,001, of 1920.

The alleged invention relates to the control of lighter-than-air craft, and is sufficiently described in the claims above quoted.

Claim 8 is for an improvement in “equipment for stabilizing” an airship while in the air. It was rejected by the Patent Office tribunals upon the British patent to Adam. The Board in its decision said:

“Claim 8 relates to the means for balancing the vessel as disclosed in Fig. 51 of the drawing. The examiner has relied primarily on the patent to Adam et al. and in the brief the feature upon which appellant relies to distinguish over the balancing device of Adam et al. is the manner in which the fluid in the control tube is effective. In appellant’s construction the fluid in tube 204 moves a float at the end of the tube for controlling a rheostat. The apparatus pumps the balancing fluid from one tank to the other. The liquid in the control tube of Adam merely makes contact at the ends of the tube for energizing the motor to drive in one direction or the other. Appellant points out that claim 8 calls for change in pressure of the fluid against the walls of the container. He states that this refers to the pressure against the float and that inasmuch as the tube of Adam has no float this claim does not read upon the structure of Adam. We do not consider that there is any patentable distinction in controlling a motor current from the differences in liquid level rather than from a float moved by the differences in position of the liquid. We regard one as the mechanical equivalent of the other. We have noted appellant’s contention that the motor of Adam would be apt to overrun but in our opinion there would be no difficulty in providing a proper control for the motor so as to prevent this action if it is found objectionable.”

Appellants contend, and the Solicitor for the Patent Office in his brief impliedly concedes, that claim 8 does not refer to the construction shown in Figures 5F-53 of the drawings of appellants’ application. The Patent Office tribunals clearly erred in this respect, but the Solicitor contends that, conceding that claim 8 relates to the means for stabilizing a vessel as disclosed in Figs. 54r-59 of the drawings, it still is disclosed by the Adam specification. He further contends that the phrase in said claim, reading, “Said actuating means being responsive to the change in pressure of the fluid against walls of its container,” cannot be considered as a structural difference over the reference Adam, because, he contends, the phrase quoted is only a statement of how appellants’ device works, rather than a statement of any particular structure. We do not agree with this contention; while the means and the pressure produce a function, it is, we think, structure that is described and not the function produced by the structure.

In the ease of In re Sagle, 40 F.(2d) 976, 17 C. C. P. A. 1131, this court reversed a decision of the Board of Appeals of the Patent Office rejecting a claim,' the material part of which read as follows: ■

“* * * And means for generating a feeding pressure in excess of the automatic pressure, said feed control means being responsive to such, excess pressure to permit the passage therethrough of a quantity of oil in excess of that permitted under the automatic pressure.” (Italics not quoted.)

We are of the opinion that the phrase in daim 8 above quoted may be properly considered as an element of the claim.

The patent to Adam shows a mercury level, being a glass tube with upturned ends, containing mercury; this level tilts with the ship. When the ship is out of horizontal position, the mercury flows in the direction below the horizontal, coming in contact with a terminal, thereby starting a motor at full speed to change the position of the weights which are provided. The opening or closing of the contact is not dependent upon a change in the pressure of a fluid against the walls of its container, as specified in claim 8 of appellants’ application, nor does the device contemplate or provide any arrangement for regulating the speed with which the weights may be shifted. The consequence is that Adam’s device may result in causing a tilting in the opposite direction and make it difficult for the' ship to speedily regain its equilibrium.

The device covered by claim 8 works upon an altogether different principle. It applies the principle of hydrostatic head, and provides for controller actuating means containing a liquid which has a substantial hydrostatic head or pressure against the walls in the container. There is a tank located in the forward part of the ship, in an elevated position; said tank is connected by a tube with a cylinder, located toward the rear of said ship and at a lower elevation with respect to the aforementioned tank; within this cylinder is a piston, one face of which is toward the inlet of the tube and forms one of the walls of the cylinder container, while on the other side of the piston a spring is interposed. Into the tank and tube system above set forth is placed a fluid, with the result that there is a hydrostatic pressure exerted upon one face of the piston in the cylinder. The position of the piston within the cylinder depends upon the relative hydrostatic pressure on one side of the piston and the pressure exerted by the spring on the other side. When the level of the tank is raised, as by the nose of the ship tipping upward, the hydrostatic head of the system increases and the piston in the cylinder responds to said increase of pressure by moving within the cylinder and compressing the spring. This movement of the piston is transmitted, by means unnecessary here to detail, to a rheostat, causing the same to energize a corrective motor, the speed at which said motor will run depending upon the position of the rheostat, which in turn depends upon the extent of movement of the piston in the cylinder. In other words, the rapidity of operation of the corrective motor is proportionate to the degree of tipping of the ship, or, to state it another way, is responsive to the degree of change of hydrostatic pressure, so that it will run slowly if the deviation of the ship’s bow be slight, and rapidly if the deviation be great. The reverse is true in case the bow is depressed, the hydrostatic pressure in this ease being decreased, allowing the spring in the cylinder to move the piston in the opposite direction, resulting in the operation of the motor in. the reverse direction.

Mere contact of the liquid with the piston and walls of the cylinder accomplishes nothing. The action of the device is dependent wholly upon hydrostatic pressure. In the Adam device, mere contact of the mercury with the terminal starts the motor and, as heretofore observed, at a constant speed, while in applicants’ device the speed of the motor is dependent upon the degree of pressure of the liquid upon the walls of the container. We are clear that the Adam patent is not a proper reference for claim 8, and that said claim should be allowed.

Claims 29, 30, 42, and 43 were rejected by the Board of Appeals as defining nothing patentable over the state of the art as shown by the references.

In view of the conclusion we have reached, it is necessary to discuss but one element, found in each of said claims, which element, we find, constitutes patentable invention. This is the element claimed for conserving lifting gas in airships having lighter-than-air gas in containers, comprising the partial filling of the said gas containers with lighter-than-air gas heated to a temperature higher than that of the surrounding atmosphere, previous to the launching of the airship at the start of a flight, and the launching of the ship with its gas thus heated.

It is the contention of appellants that, since a greater lifting power is necessary to raise an airship at the earth’s surface than is necessary when the ship has reached an altitude suitable for flight, because of the difference in atmospheric pressure, his method of heating the gas before launching the ship, and its cooling when the ship has reached a flight altitude, results in a very substantial conservation of gas, a less amount of valuable gas being necessary for the voyage of a ship than .would be required without such pre-heating of the gas.

Appellants further contend that the method described also facilitates the landing of the airship, without loss of gas, for the reason that, when the gas is cooled to atmospheric temperature, the ship will not, upon landing, have the same buoyancy as when it was launched with the gas heated.

We agree with appellants in these contentions and, if not anticipated by the prior art, the claims should be allowed.

The Board of Appeals held that this feature of temperature control did not lend patentable distinction to the claims, in view of the prior art. The Examiner held that, in view of the references, showing altitude control can be had by changing the temperature of the lifting gas, there is no apparent difference in operating an airship from the ground to a given altitude over operating it from one altitude to a higher one. We assume that it was upon this ground that the Board of Appeals held that the heat control element of the claims did not constitute patentable invention.

We have carefully examined the references cited, and find that none of them discloses or suggests appellants’ method of heating the gas before the launching of the ship, requiring a less quantity for flight than would be necessary without such heating. We do not agree with the conclusions of the Patent Office tribunals that there is no difference between controlling altitude of a ship while in flight by means of changes in temperature, and heating the gas upon the ground before the ship is launched, and we do not think that appellants’ method described in the claims was obvious in view of the references.

By heating the gas before launching the ship, a, less quantity is required in the flight than when the ship is launched inflated with gas at approximately atmospheric temperature, and the cooling of the gas facilitates landing because the ship would have less buoyancy because of such cooling than when launched with the gas heated.

For the reasons stated, we are of the opinion that the heating element in said claims constitutes invention, and. that the claims should be allowed. In view of this conclusion, it is unnecessary to consider appellants’ contention that other elements in the claims also render them patentable.

We hold that all of the appealed claims are allowable, and the decision of the Board of Appeals is reversed.

Reversed.


author: GARRETT, Associate Judge.

text:
    In re SLEPIAN.
    Patent Appeal No. 2727.
    Court of Customs and Patent Appeals.
    May 25, 1931.
    Wesley 0. Carr, of East Pittsburgh, Pa. (Frederick W. Lyle, of Williamsburg, Pa., of counsel), for appellant.
    T. A. Hostetler, of Washington, D. C. (Howard S. Miller, of Washington,. D. C., of counsel), for Commissioner of Patents.
    Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges.
   GARRETT, Associate Judge.

This proceeding involves five claims, Nos. 22 to 26, inclusive, contained in an application filed by Slepian January 5, 1921, for alleged new and useful improvements in thermionic amplifying devices. Seven claims of the application were allowed by the United States Patent Office. Those at issue were rejected by the Examiner, whose decision was affirmed by the Board of Appeals of the United States Patent Office, and from the decision of the latter the appeal comes to this court.

The claims are divisible into two classes, Nos. 22 and 23 comprising one group, and Nos. 24, 25, and 26 the other. Nos. 22 and 24 are quoted as representative of these respective groups:

“22. In combination with a source of electro-motive force., and a work circuit adapted to utilize a relatively large current, a pair of electrodes connected in said work circuit, a source capable of emanating electrons at a rate which is small relative to that necessary to supply said current, means to cause electrons from said source to impinge upon that portion of one of said electrodes which faces said other electrode, and means to vary the number of said electrons impinging upon said one electrode per second.”
“24. In combination with an output circuit having a pair of electrodes connected thereto, a source of light, a photo-electric subtance, means to cause electrons emanating from said substance to impinge upon one of said electrodes, and means to vary the number of said electrons so impinging per second.”

The references are: Langmuir, 1282439, Oct. 22, 1918; Slepian, 1450265, April 3, 1923.

From the decision of the Board of Appeals, we quote the following description of the device and its operation:

“The claims are drawn to a work circuit including a thermionic amplifier. In the form of the device shown in the drawings the amplifier is provided with a cathode, an anode and a control grid and in addition to these three electrodes it is provided with a potassium electrode which constitutes the source of primary electrons. The latter electrode is photo-electrieally active and when subjected to the rays of a lamp emits primary electrons which travel toward the anode. Due to the presence of a magnetic field, however, they are diverted and strike that face of the cathode which is located toward the anode. The small number of high velocity primary electrons striking the cathode causes the emission therefrom of a large number of secondary electrons which pass to the anode. This large number of electrons permits a relatively high current value to flow through the output - circuit connected to the tube.”

It was the view of the tribunals of the Patent Office that claims 22 and 23 defined nothing patentable over the subject-matter of certain claims of appellant’s patent of April 3, 1923, supra. Both tribunals pointed out that the only feature distinguishing the claims is that those of the application, to quote the Examiner, “recite means to vary the number of electrons emitted from the source of primary electrons.”

Claims 24 and! 25 call for the additional feature of a “source- of light” and a “photoelectric substance” constituting the electron source, while claim 26 specifies the further matter of “means to vary the intensity of said light source.” These three claims were rejected, upon appellant’s patent in view of Langmuir.

It is appellant’s contention that the claims are for a general combination, and that the features of “(1) a photo-electric metal, and (2) a pair of electrodes arranged for secondary emission amplification,” are elements, the combination of which forms what he refers to as the “vital combination.” In other words, as we understand it, appellant insists that these two features combined, themselves, form a specific combination, which is a part of the general or larger combination ; that these particular features were not included in the claims of the patent which were themselves, combination claims, and that he is entitled now to include them and seeure a patent on the new, combination. He would thus have a combination within a combination, or a sub combination.

This situation has led the Solicitor for the Patent Office to suggest that possibly the question of double patenting may be involved. Appellant, in his brief, disclaims any purpose of double patenting, and, as we interpret his argument, concedes that the granting of his present application would protect him only as .to the. so-called “vital combination” of the two features recited, after his patent of April 3, 19-23, shall have expired. It is his contention that the present claims, in so far as they relate to the “vital combination,” are' not genus but species claims, and involve a distinct additional invention for which patent may issue, citing In re Isherwood, 46 App. D. C. 507, 1917 C. D. 226.

Under the doctrine of the Isherwood Case, supra, it is clear, we think, as stated in the brief of the Solicitor for the Patent Office, that “appellant is not entitled to claims for a second form of his invention unless such claims to the second form involve an inventive difference over the claims already taken out in the patent for the first foam.” In re Swan, 46 F.(2d) 572, 18 C. C. P. A. -; In re Forrest, 47 F.(2d) 395, 18 C. C. P. A.-.

Among other eases appellant cites that of Thomson-Houston Electric Co. v. Elmira & Horseheads Ry. Co. (C. C. A.) 71 F. 396, wherein, at page 405, it was said:

“A machine or structure may embody several different inventions. There may be sub-combinations in a machine which are new and useful, and operate conjointly to perform some subordinate function. Such a subcombination, if not patented by a claim, might be appropriated by another without infringing a patent for the machine. Being for a different invention, it is the proper subject o-f a distinct patent. While two or more inventions residing in the same combination or structure may be covered by a corresponding number of claims in a single patent, the law does not require them all to be claimed in the same patent, and the inventions may, at the option of the patentee, be secured by different patents.”

Appellant correctly states the thought of the Thomson-Houston Case, supra, in his brief:

“The test is whether the species improvement involved invention; i. e., whether it is adapted to produce a new and unobvious re-. suit.”

It does not seem to us that the Patent Office tribunals erred in holding that nothing patentable over the prior art appears in the claims at issue. Surely the control of cathode emission is old and requires means. The claims of appellant are simply for “means” of doing this, and are not limited to any particularly described means.

As for the “source of light" and the “photo-electric substance” mentioned in claims 24 to 26, Langmuir shows both, and appellant’s claim would, apparently, substitute these Langmuir elements for the heated filament element of his own patent. The “means to vary the intensity of said light source,” referred to in claim 26, is not inventive, we think, in view of the state of the art.

We are unable to see wherein, the additional features or elements taken from the prior art and incorporated in appellant’s appealed claims, either singly or in combination, perform any function which they have not heretofore performed, or produce any new result in the sense of the patent law.

We therefore agree with the concurring findings of the Patent Office tribunals and affirm the decision of the Board of Appeals.

Affirmed.


author: HATFIELD, Associate Judge.

text:
    In re EGLER.
    Patent Appeal No. 2725.
    Court of Customs and Patent Appeals.
    May 25, 1931.
    Blount & Helbert, of Philadelphia, Pa. (George K. Helbert and Frederick A. Blount, both of Philadelphia, Pa., of counsel), for appellant.
    T. A. Hostetler, of Washington, D. C. (Howard S. Miller, of Washington, D. C., of counsel), for the Commissioner of Patents.
    Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges.
   HATFIELD, Associate Judge.

This is an appeal from the decision of the Board of Appeals of the United States Patent Office affirming the decision of the Primary Examiner rejecting claims 1, 2, 3, and 5 to 9, inclusive, in appellant’s application for a patent for an alleged invention relating to improvements in the construction of walls for open hearth furnaces. Claim 8 is illustrative and fully describes appellant’s alleged invention. It reads:

“8. In an open hearth furnace 'having a hearth of normal width, a wall having a vertical lower portion extending to the vicinity of the slag line, an outwardly and upwardly inclined portion extending from the upper end of said vertical portion to a point above the slag line and a vertical portion above'said inclined portion extending to the roof, and furnace lining material covering said inclined portion and extending partially up the face of the superjacent vertical portion of the wall.”

The references are: Isles, 1,495,519, May 27,1924; Naismith, 1,563,038, November 24, 1925.

The Primary Examiner described the references as follows:

“Naismith shows the side wall resting at its lower end upon the side wall of the vertical hearth wall and sloping outwardly and upwardly to the outer edge of the roof and the angle is stated to be not materially less than the angle of repose of the lining material, see page 2, lines 19 and 20 of the specification.
“Isles, in Fig. 4 shows a sloping hearth wall with a vertical side wall 3 displaced outwardly from the inner face of the top of the hearth wall with refractory material piled upon the sloping hearth wall and against the vertical side wall.”

The Primary Examiner held, in substance, that appellant had merely modified the structures shown in the references without producing an unobviously new result.

The Board of Appeals held that appellant’s structure was not substantially different from the Naismith disclosure, and, after stating that it was customary in open hearth furnaces to line the bottom part of the walls with loose refractory material, that the walls in the Isles reference extended considerably above the refractory material, and that it had been found in practice that the exposed walls were injured by the heat, necessitating rebuilding of the furnaces, pointed out that the walls of appellant’s furnace were protected by extending the loose material to a higher point. Thereupon the Board said:

“Appellant contends that he discovered that it was unnecessary to protect the side walls entirely to the roof and that he designed a furnace which is much superior to that of Naismith. He urges that the space at the sides of the Naismith furnace beyond the metal bath is greater than in his construction, thereby increasing the amount of air and gas necessary. Also, he contends that it is necessary to construct furnaces of the Naismith type larger in order to- accommodate the same amount of material being treated and that the roof construction of Naismith is weaker. He points out that the overhang as shown at 64 of Naismith gets in the way of operatives and is objectionable. We have considered these points carefully but in our opinion there is substantially little difference in the capacity of the two furnaces or in the amount of gas and air necessary for operation. If appellant should continue the inner slope of the wall 16 upwardly somewhat in a curve- as shown on the inner face of the wall 66 of Naismith and then continue the bank of loose material to the roof, it is believed there would be no substantial difference in the amount of gas and air required in these structures! While it might be necessary to extend the roof slightly it is not believed that the difference would be material. As far as the overhang at 64 of Naismith is concerned there is no reason why the projecting horizontal portion cannot be inclined, if it is found that it interferes with the operatives, without modifying the internal construction of the furnace. It seems clear to us that Naismith recognized that it was unnecessary to supply the same amount of protection to the upper portion of the walls as to the lower and for this reason the layer of loose material is shown much thinner there, as previously stated.”

It is contended by counsel for appellant that appellant has devised a furnace structure of longer life than that disclosed by Isles without loss of any of the advantages obtained therefrom; and that appellant’s structure is as durable as the Naismith'disclosure, and has the following important advantages, whereby steel may be produced at less cost: It requires less floor spaee, the cost of construction is less, and, the “volumetric capacity” being less, the heating gases are more closely confined and are utilized more efficiently, thereby reducing the amount of air and fuel required to heat a charge of given tonnage capacity.

It is further argued by counsel for appellant that appellant has produced a novel and unobvious combination, that it produces new and useful results, and that appellant is entitled to a patent.

It is conceded by the Solicitor for the Patent Office that appellant’s structure is novel. It is argued, however, that it was uninventive to make the upper part of the walls in the Naismith reference vertical instead of outwardly flaring, in view of the fact that the patent to Isles shows exactly that very thing, and that, although appellant may have produced a better furnace than either of those disclosed in the references, the combining of the old elements and the results obtained therefrom were obvious to one skilled in the art.

Although we are unable to agree with that part, of the Board’s decision in which it is held that the volumetric capacity in the Naismith reference is not substantially greater and that it will not require substantially mox-e fuel in operation than appellant’s structure, we are in aeeord with the decision of the tribunals of the Patent Office in holding that, in view of the patent to Isles, it would not involve invention to modify the Naismith disclosure by changing the outwardly sloping walls at a point above the slag line to vertical walls and extending them to the roof. The Isles reference clearly suggests such a structure.

For the reasons stated, the decision is affirmed.

Affirmed.


text:
    In re COCA-COLA BOTTLING CO. OF LOS ANGELES.
    Patent Appeal No. 2693.
    Court of Customs and Patent Appeals.
    May 25, 1931.

      John J. Riley, of Washington, D. C., for appellant.
    T. A. Hostetler, of Washington, D. C., for the Commissioner of Patents.
    Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges.
   GARRETT, Associate Judge.

This proceeding, which is ex parte, involves the right of appellant to register the two words “Lemon Frost” for use as a trademark on “soda water, or pop, sold as a soft drink.”

The decision of the. Commissioner of Patents affirmed that of the Examiner of TradeMarks, denying the registration sought, because of the trade-mark “Jack Frost,” registered to F. B. Chamberlain Company September 18, 1928, for “concentrated extracts and syrups for making nonalcoholic, malt-less beverages.”

Appeal was then taken to this court.

It appears from the record in the case that at one time appellant sought to register the words “Orangé Frost” for use on some of its products, and this was opposed by Chamberlain & Co. on account of its ownership of “Jack Frost.” The Commissioner of Patents sustained the opposition, and after his decision the Commissioner remanded the “Le:gion Frost” application to the Examiner, after the latter named mark had been ordered to publication, for reconsideration in the light of the “Orange Frost” decision, and, upon this reconsideration, the Examiner refused the registration, largely or wholly upon the “Orange Frost” holding, and the Assistant Commissioner, who passed upon this ease on appeal, did the same.

The issue before us is, first, whether the goods are of the same descriptive properties; and, if so, second, whether the marks are so similar as to be likely to cause confusion. It is also proper to consider whether the mark, or any portion thereof, is descriptive.

The extracts and syrups upon which the “Jack Frost” mark is applied are used for flavoring drinks which are dispensed at fountains, commonly referred to as soda fountains. As we understand from the record, applicant uses the mark “Lemon Frost” for drinks which have been prepared and probably bottled. These drinks are largely sold at the same places of business and at the same fountains. There can be no question but that, under the doctrine of numerous decisions of this court, the goods must be held to be of the same descriptive properties. Revere Sugar Refinery v. Joseph G. Salvato, 48 F.(2d) 400, 18 C. C. P. A.-, and cases cited.

The flavoring extract is an ingredient of the finished beverage, and, in the sense of the trade-mark registration statute, is, the nature of the respective products being considered, of the same descriptive properties as the beverage into which it enters.

We take it that the use of the word “Lemon” in connection with “Frost” is for the purpose of indicating the flavor of the drink contained in the bottle to which “Lemon Frost” is applied. If so, and it be lemon flavor, that part of the mark is descriptive. If it be not lemon flavored, then that part of the mark would be misdeseriptive. It is evident that “Lemon” alone would not be registerable as a trade-mark for use on applicant’s goods, because of its descriptive character, but it is urged that the mark must be taken as a whole.

It seems clear that the words “Jack Frost” having been registered for use on goods of the same descriptive properties, it would not be permissible for applicant to register “Frost” alone for such use as is proposed.

“Jack Frost” is defined by Funk & Wagnalls New Standard Dictionary as “the personification of wintry weather.” One definition of “Frost” is “minute crystals of ice formed directly from atmospheric water-vapor.” In common parlance, “Frost” and “Jack Frost” are not infrequently used interchangeably. Either word, applied to the products of applicant, or to those for which the registration which led to the rejection of the application was secured, is suggestive, and doubtless is intended to be suggestive, of coldness in the drink.

Since “Lemon” is descriptive and “Frost” would be prohibited to -applicant on account of the registration of “Jack Frost,” the matter, under the facts of this ease, resolves itself into a question of whether, by combining a descriptive word with a prohibitive word, applicant can be held to have created a noneonflieting arbitrary mark, not descriptive, and unlikely to cause confusion.

We do not think it may be properly so held.

It is assumed from the certificate of registration that “Jack Frost” is now being used, or could be used, on lemon flavoring for soda fountain beverages. If applicant be permitted to register “Lemon Frost” for a lemon-flavored beverage the form of which differs from the fountain product only in the fact that it is contained in a bottle rather than being concocted at the fountain, the result, it seems to us, would likely confuse purchasers as to the products, particularly as to their origin.

The decision of the Commissioner is without error, and same is affirmed.

Affirmed.


text:
    FIELD v. STOW.
    No. 2754.
    Court of Customs and Patent Appeals.
    May 27, 1931.
    See, also, 49 F.(2d) 1072.
    Frederick H. Gibbs and Donald U. Rich, both of New York City (Herbert Jacobi and Win. J. Jacobi, both of Washington, D. C., of counsel), for appellant.
    Cyrus Kehr, of Washington,- D. C., for appellee.
    Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges.
   HATFIELD, Associate Judge.

This is an appeal in an interference proceeding from the decision of the Board of Appeals of the United States Patent Office affirming the decision of the examiner of interferences awarding priority of invention to appellee.

The counts in issue were taken from appellant’s patent No. 1,649,396, issued November 15, 1927. They read:

“2. In a self-clearing end dump mine ear, wheel axles, a longitudinally extending wood flooring comprising the lowermost longitudinally extending horizontal member of the ear, supporting sills for said flooring, and self-clearing housing over said axles and resting on the wood flooring.
“3. In a self-clearing end dump mine car, wheel axles, a longitudinally extending wood flooring comprising the lowermost longitudinally extending horizontal member of the car, sills for supporting said flooring, axle housings mounted on said flooring and connected to said sills, and ties between the sills and located below the flooring.”
“5. In a self-clearing end dump mine car, wheel axles, side sills carried on said axles, a longitudinally extending wood flooring positioned below the wheél axles and comprising the lowermost longitudinally extending horizontal member of the ear, said sills carrying said flooring, and ties between said sills.”

As stated in the counts, the invention relates to improvements in mine cars.

Counsel for appellant moved to dissolve the interference on the ground that appellee had no right to make the claims constituting the counts in issue. The motion was denied by the law examiner. Thereafter, a petition for rehearing was filed and denied.

In his original decision, the law examiner said:

“In count 2 the lowermost longitudinally extending horizontal member of the oar must be a composite member including such floor planks as are shown at 23, 24 in Field’s Figs. 3, 5, and 6. It is therefore immaterial whether the separate planks extend longitudinally of the ear or across the ear if the flooring as a whole extends longitudinally of the car. This is true of Stew’s floor which comprises transverse wooden elements. Self-clearing housings are shown in Stow’s Fig. 20.
“As to count 3, Stow discloses ties between the sills and located below the flooring in the diagonal members 221, Fig. 3. It is not necessary that these elements should have a floor supporting function to satisfy the count.
“Counts 4 and 5 include no additional elements and demand no further discussion. * * * There are no terms of doubtful meaning in the counts and it is not apparent that any terms require definition outside of their fair and ordinary meaning.”

In denying the petition for rehearing, the law examiner said:

“ * * * The lowermost longitudinally extending member of the ear includes a plurality of floor planks and is a composite member. If the composite member extends longitudinally it is not necessary to satisfy the count that the separate planks should also extend longitudinally to make a longitudinally extending flooring.
“The alleged disclaimer in Stow’s specification, page 6, lines 28 to 31, of a ear construction which includes longitudinally extending wood flooring is merely a statement that the separate planks of the floor are arranged transversely. It is not a disclaimer of a longitudinally extending flooring.”

Due to the fact that the date alleged in appellant’s preliminary statement for conception of the invention defined in the involved counts was subsequent to the filing date of appellee, and it having been held by the law examiner that appellee could make the claims constituting the counts in issue, the examiner of interferences awarded priority of invention to appellee.

The Board of Appeals held that the language “a longitudinally extending wood flooring comprising the lowermost longitudinally extending horizontal member of the ear,” contained in each of the involved counts, was ambiguous and might mean that the planks of the flooring were longitudinally extending, as disclosed in the specification in the patent to Field, or that the “flooring comprising the lowermost longitudinally extending horizontal member” might be considered as a unit without regard to whether the planks extended longitudinally, as disclosed in the patent to Field, or transversely, as disclosed in the application of Stow. The board then said:

“The gist of the invention in this count is a ear, comprising a horizontal floor member extending as a unit, or whole, from one. end of the car to the other longitudinally thereof, said longitudinally extending member comprising the lower most horizontally extending member of the car. supporting sills for said flooring,, and self-clearing housings over said axles and resting on the wood flooring. Such housings are necessary in a car in which the flooring is the lower most horizontal member of the ear and is supported by the sills below the axles in order that the coal in the car may slide over the axles when one end of the car is raised that the load may slide over the inclined floor to be delivered longitudinally of the ear and out from the unraised end of the ear as described by both Field and Stow. Considering the flooring of the car as a unit it is immaterial whether the planks thereof extend longitudinally of the ear or transversely. If Field, the patentee, had intended to limit his flooring to longitudinally extending planks it could have been so specified in the claim by including the wood planks. His invention, however, consisted in a floor extending horizontally and longitudinally of the car and below the axles of the car and apparently he did not wish to limit his claim to longitudinally extending planks. It was immaterial to the invention whether the planks extended in one direction or another transverse thereto. Count 2 does not specify longitudinally extending planks and the count clearly reads upon the construction shown and described by Stow and clearly states the gist of Stow’s invention as well as that of Field. The decision of the Law Examiner is affirmed as to count 2.
“Count 3 differs from count 2 in that it includes 'ties between the sills and located below the flooring.’ Inasmuch as these ties are present in Stow as shown by the ties 221, we think Stow can make this count and the decision of the Law Examiner with regard thereto is affirmed. * * *
“Count 5 specifies ‘a longitudinally extending wood flooring positioned below the axle wheels,’ and since there appears to be nothing material to the invention in construing this expression to mean that the planks of the flooring extend longitudinally, we think the party Stow is entitled to make the claim of count 5 and the decision of the Law Examiner is accordingly affirmed.”

Having reached the conclusion that appellee could make the claims constituting the counts in issue, and as appellant did not claim that he was entitled to priority of invention if appellee was entitled to make the counts in issue, the Board of Appeals awarded priority of invention to appellee. :

Counsel for appellant contends that appellee is not entitled to make the involved counts. It is urged.that, as held by.the Board of Appeals, the language “a longitudinally extending wood flooring comprising the lowermost longitudinally extending horizontal member of the car” is ambiguous; that, if this is so, the law requires that the counts must be construed in conformity with the patent in which they originated; and that, having copied the counts for the purpose of interference, appellee is bound by the meaning placed upon them by patentee. That this is a correct statement of the law, we have no doubt. Ernest M. Brogden v. Henry B. Slater, 40 F.(2d) 988, 17 C. C. P. A. 1240.

However, after giving the matter careful consideration, we are unable to hold that the Board of Appeals was right in holding, and that counsel for appellant is right in claiming, that the language of the counts is ambiguous.

The word “flooring” is defined in Funk & Wagnalls New Standard Dictionary as follows : “Flooring, n. 1. Material from which to make a floor. 2. Floors collectively; a floor.”

It will be observed that the language of the counts defines “a longitudinally extending wood flooring comprising the lowermost longitudinally extending horizontal member of the car.” (Italics ours.) Obviously, if the word “flooring” was intended to refer to the material for a floor, the “flooring” could not be said to comprise the lowermost longitudinally extending horizontal member of the ear, nor would the planks and the “longitudinal buffer beam,” which, the specification states, forms the floor, be referred to in the singular.

In view of the fact that the word “flooring” has two meanings, it would seem to be obvious that it must be interpreted in the counts as meaning a floor, otherwise we would be required to hold the language practically meaningless.

We agree with the views expressed by the law examiner that the language is unambiguous; that it means exactly what it says; that the lowermost longitudinally extending member of the ear, including planks and a buffer beam, is a composite member (a longitudinally extending floor); and that it is immaterial whether the planks extend longitudinally or transversely.

Had appellant seen fit to do so, he might have expressly limited his patent claims to a longitudinally extending wood floor consisting of longitudinally extending planks. However, as he did not do so, but deliberately elected to claim the invention broadly, he is not now in a position to insist that limitations be read into them for the purpose of avoiding the issue of priority. On the contrary, the counts should be given the broadest interpretation which they will reasonably support. Deibel v. Heise & Schumacher, 46 F.(2d) 570, 18 C. C. P. A.-.

The decision is affirmed.

Affirmed.


text:
    MONTGOMERY WARD & CO., Inc., v. SEARS, ROEBUCK & CO.
    Patent Appeal No. 2703.
    Court of Customs and Patent Appeals.
    May 25, 1931.
    Wm. Nevarre Cromwell, of Chicago, 111., Earle D. Crammond, of Washington, D. C. (Charles B. Fullerton and James L. McManus, both of Chicago, 111., of counsel), for appellant.
    C. Paul Parker, of Chicago, 111., for appellee.
    Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges.
   GARRETT, Associate Judge.

This is a trade-mark registration interference proceeding in which Montgomery Ward & Co., Incorporated, has appealed from a decision of the Commissioner of Patents, affirming a decision of the Examiner of Interferences awarding to Sears, Roebuck & Co. priority of use and right of registration of the word “Sta-IOean” for use on ammunition in Patent Office class 9, explosives, firearms, equipments, and projectiles, and denying to appellant right of registration of the word “Staelean” for use on the same type of goods.

The goods upon which the respective parties are using, and propose to use, the respective marks, are identical in character. The words are the same, except that appellee hyphenates its word and uses the capital letter “K” where appellant uses the small letter “e” in spelling “clean.” Appellee also makes a somewhat fanciful arrangement of its word, while appellant uses plain letters, but this difference is not urged as having any bearing upon the issue. So the question in the case is that of which party first used the mark in the sense of the Trade Mark Registration Act of February 20, 1905 (15 USCA §§ 81-109).

The application of appellee for registration was filed in the Patent Office September 14, 1927, and alleged continuous use “since June 28, 1927.” Appellant filed its application December 10, 1927, alleging use “since May 11,1927.”

The interference was declared January 13, 1928, and on April 18, 1928, appellee moved -to amend by substituting March 2, 1927, for June 28, 1927, as its date of beginning use. Consideration of this motion was postponed by the Examiner of Interferences “until after the termination of this interference.” We do not find in the subsequent decisions where either tribunal of the Patent Office formally passed upon the motion, but it seems to have been treated as granted, and, in the argument before us, appellant agrees that it should be so treated.

It is the contention of appellant, however, that upon the fact of the sale, claimed by appellee to have been made on March 2, 1927, the evidence is conflicting as to some details, and does not satisfactorily establish such a sale of goods bearing the mark as to give appellee ownership thereof in the sense of the Trade Mark Registration Law. Upon the fact of the sale, we have the concurring findings of both tribunals of the Patent Office, and the rule that this court will not disturb such findings unless convinced by the evidence that they are manifestly wrong is applicable.

We do not feel that these findings were erroneous. It appears that appellee, in the fall of 1926, or in January, 1927, began to consider the question of dealing in ammunition of a new type which would not foul the bore of the guns in which used, and that it took up the subject with the Western Cartridge Company, which furnished appellee’s ammunition supplies; that in January, 1927, after considering different names for trademark use, “Sta-Klean” was decided upon; that on January 21, 1927, the supervisor of appellee’s sporting goods department wrote the advertising department to take steps to register the mark, and that these steps were taken; that in February, 1927, drawings were made of the design for the mark, followed by photostatie copies of the drawings; and that plans were under way to have the goods listed, under the Sta-Klean mark or label, in the catalogue which was to be issued July 1, 1927, which plans were duly consummated.

It further appears that one Emil Q, Strauss, a commercial artist in the employ of an engraving company which did work for both parties to this suit, learned in some way — we do not regard it as material just how- — of appellee’s ammunition to which the Sta-Klean mark was applied, or was to be applied, and under date of February 28, 1927, addressed a letter, which is in evidence, to the company placing an order for “two hundred rounds of Sta-Klean ammunition for a .22 short caliber rifle,” and stated in his letter: “I am enclosing 70 cents. I do not know whether this is the right price, as I have no catalogue to order from.”

The order was filled; the merchandise being shipped by express. The receipt of the express company is in the record, and along with it a statement showing that the price was 60 cents, and that there was due the purchaser a refund of 10 cents.

We see no reason, in the face of the testimony and the documentary evidence filed, to question the fact that the goods shipped were the goods ordered. The witness states that he received the goods in boxes labelled with a photostatie copy of the Sta-Klean design or mark, and that he used the goods, except perhaps some that were misplaced, for the purposes for which ordered.

Geo. L. Engelhard, an employee of appellee, testified that he personally looked after the filling of the Strauss order and attached the photostats to the packages. It is not deemed neeessary to go into any elaborate review of the evidence in the case. Unless both. Strauss and Engelhard are to be wholly discredited and their testimony, as well as the documentary evidence, disregarded, we •think the fact of the sale to Strauss is abundantly established.

Appellant insists, however, that, even if the sale to Strauss be conceded, it was not a sale of the type of ammunition upon which it was proposed to use the mark; that it was some other type which appellee had in stock at the time and upon which it placed the photostats. Appellee insists that the evidence shows that it was of the same type, and that, even if it were not, it would make no difference in law. Upon the latter contention of appellee we do not deem it necessary to pass, since we agree with the former. Engelhard’s testimony, taken as a whole, is quite positive to the effect that the sale to Strauss consisted of an ammunition which had the noneorrosive powder of the type covered by appellee’s Sta-Klean mark.

Without lengthening this opinion unduly by a minute analysis of the testimony, it is sufficient to say that, in our opinion, it establishes the sale to Strauss as being a bona fide sale of the type of the goods for use upon which the registration of appellee-is sought, and that the packages contained the mark, applied in a manner which meets the requirement of the Trade Mark Registration Act as to fixing appellee’s title thereto.

The sale to Strauss was an intrastate transaction. This was sufficient, when coupled with the further subsequent uses shown, to vest title in appellee or give to it the ownership of the mark, but registration could not be predicated upon this alone. Macaulay V. Malt-Diastase Co., 55 App. D. C. 277, 4 F. (2d) 944. In order to be entitled to register, the owner of a mark, by the terms of the statute, must have used same in interstate commerce.

.Such interstate use by appellee is, we think, established by a sale and shipment to Dr. Maurice A. Marr, of Michigan City, Ind. Dr. Marr’s order for “100 6K216 Staklean cartridges” was given in writing under date of. June 27, 1927, accompanied by a check for 30 cents, and the goods ^ordered were received by him a few days thereafter, being shipped by express on June 28, 1927. Dr. Marr’s testimony as to this transaction is supported by ample documentary evidence. Indeed, the occurrence of the transaction is not questioned by appellant, but it is insisted that it was not one which meets the Trade-' Mark Registration Act requirement. It is pointed out that Dr. Mari', in fact, made the order at the solicitation of a member of the Sears, Roebuck & Co. concern; that he did not use the cartridges; and the contention is that the whole transaction was brought about in an effort to meet the interstate commerce requirement of the registration law, and appellant cites the ease of Phillips v. Hudnut et al., 49 App. D. C. 247, 263 F. 643.

It does not seem to us that the instant case is on all fours with the last-named case. The facts are different. There is no question of there having been a sale in the instant case. Dr. Marr ordered the cartridges and paid the regular price for them with his own money. It is not material how he used them, or whether he used them at all. It may be that the transaction was one brought about by appellee’s desire to meet the requirements of the law, but this does not destroy its rights, if, in fact, it did meet these requirements.

The transaction with Dr. Marr, on the part of appellee, is, at least, in quite as favorable a situation legally as is that of appellant with Anderson and Cameron, wherein appellant, in response to an order for one kind of cartridges, substituted and shipped to Anderson others bearing the “Staelean” label. The circumstances, we think, strongly indicate that the transaction of appellant was in order to make an interstate shipment of goods bearing its proposed mark.

It is upon this shipment that appellant relies to establish its date of May 11, 1927. The proof fails definitely to establish that its goods shipped were, in fact, accepted so as to make out a completed interstate commerce transaction, but, under our view of the case, we need not pass upon that question.

It is quite evident from the record that both parties to this proceeding, who are engaged in the mail order business upon a large scale, began to plan dealing in the type of ammunition containing a new kind of noncorrosive powder, shortly after that type became known, and by a coincidence, of which there is no explanation in the record, both chose practically the same word for a trademark. There is no allegation or intimation of fraud or deceit and counsel for each party appears to be of the opinion that neither principal knew what the other was planning relative to the trade-mark until the appearance of their respective catalogues, about' July 1, 1927.

Upon the record in the case, we think the decision of the Commissioner of Patents was without error, and same is affirméd.

Affirmed.


text:
    In re SWAIN.
    Patent Appeal No. 2735.
    Court of Customs and Patent Appeals.
    May 25, 1931.
    Albert L. Ely, of Akron, Ohio (J. Ralph Barrow, of Akron, Ohio, and Conway P. Coe, of Washington, D. C., of counsel), for appellant.
    T. A. Hostetler, of Washington, D. C. (Howard S. Miller, of Washington, D. C., of counsel), for the Commissioner of Patents.
    Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges.
   GARRETT, Associate Judge.

Appellant, Swain, seeks patent for improvements in tire rim construction; his application containing two claims. The application was rejected by the Examiner, whose decision was affirmed by the Board of Appeals of the United States Patent Office. The appeal to this court was then prosecuted.

Claim 1 is fairly representative:

“1. A tire rim having a rim base formed with a depressed gutter about one side thereof, the said gutter being formed with spaced inner and outer walls, the outer wall being inclined toward the base to provide an undercut portion, and a removable tire retaining side ring having a tire retaining flange portion, a shoulder resting upon the outer edge of the outer gutter wall, and an enlarged portion received within the gutter, the outer surface of which underlies the bead of the tire and the main body of which lies within the gutter and out of contact with the inner wall thereof, and by its mass prevents twisting of the ring under pressure from the tire.”

Four references were cited, to wit: Bryant, 1310603, July 22, 1919; Johnson, 1363182, December 21, 1920; Stuck, 1496034, June 3, 1924; Greene, 1507671, September 9,1924.

Notwithstanding the several references cited, the rejection by the Board of Appeals rested solely upon the patent to Greene.

Appellant’s structure comprises a tire rim having a rim base formed with a gutter about one of its sides; the outer wall of the gutter being inclined toward the base. . There is a removable tire retaining side ring which has a tire retaining flange, a shoulder which rests upon the outer edge of the gutter wall, and an enlarged portion which extends into the gutter. The ring is formed with a ledge which extends beneath the tire bead and forms a part of the seat therefor. The enlarged portion which extends into the gutter is of a size, with relation to the gutter, which causes it, when inserted therein, to leave a small space between the portion and the inner gutter wall.

The only difference here stressed in the structure of appellant and that of Greene is that in the latter the enlarged portion of the tire ring is of a size which causes it to contact closely with the gutter wall.

In other words, appellant’s claim for patent is based upon the fact that his structure designedly leaves a predetermined space be-' tween the sloping side of the enlarged portion of his tire ring and the gutter wall, so that the part which lies within -the gutter is out of contact with the latter’s inner wall, plus the feature that the mass of this part, so extending into the gutter, “prevents twisting of the ring under pressure from the tire.”

Since Greene discloses a mass extending into the gutter, the latter feature seems to be thereby clearly anticipated. We assume that this mass functions in Greene to prevent twisting, if it functions for that purpose in the structure of appellant. Any difference in such functioning is one of degree, and must depend upon the difference in the space between the respective masses and gutter walls.

So the issue, in the final analysis, resolves itself into the question of whether the allowance of the space referred to is inventive, or whether it is merely a matter of mechanical skill.

We have given careful study to the arguments advanced by appellant’s learned counsel, both orally and in his brief, and to the authorities cited by him, bearing upon “Pri- or Effort and Failure,” “Selection by Competitors,” “Commercial Success,” “Simplicity,” and “The Advantages and Merits of the Applicant’s Rim.”

We are not convinced by all these, however, that patentable matter is presented by appellant’s claims, in view of the prior art.

The Board of Appeals said:

“As we view the matter there was nothing inventive in making the enlargement E of the flange-ring of such a size that it would not become wedged in the gutter. We are satisfied the pressure of the inflated tire used upon the wheel of the Greene type would push the flange outwardly to some degree and to an extent sufficient to leave a slight clearance between the inner wall of the gutter and the enlarged portion of the flange-ring. How much clearance would be needed in practice would be a mere matter to be determined after a simple trial. Any mechanic would readily understand the parts must not fit so tightly that they could not be readily separated when desired to remove the flange-ring and would likewise understand the body portion of such ring which fits in the gutter must be strong enough and stiff enough for the purposes desired.”

We concur in the Board’s decision, and same is affirmed.

Affirmed.


author: HATPIELD, Associate Judge.

text:
    SIMONIZ CO. v. PERMANIZING STATIONS OF AMERICA, Inc.
    Patent Appeal No. 2686.
    Court of Customs and Patent Appeals.
    May 25, 1931.
    John T. Evans, Edward S. Rogers, and Allen M. Reed, all of Chicago, 111. (Thomas L. Mead, Jr., of Washington, D. C., of counsel), for appellant.
    Before GRAHAM, Presiding Judge, and BLAND, HATPIELD, GARRETT, and LENROOT, Associate Jucfges.
   HATPIELD, Associate Judge.

This is an appeal in a trade-mark opposition proceeding from the decision of the Commissioner of Patents affirming the decision of the Examiner of Interferences dismissing the opposition of appellant and holding that appellee was entitled to the registration of the trade-mark “Permanize” for use on “Cleaner for Automobile Bodies, Painted, Yarnished and other surfaces.”

In its application for registration, filed August 13, 1928, appellee alleged that it had' used its trade-mark since December 1, 1926.

It appears from the record that appellant is the owner of trade-mark registration No. 137,701, issued to the Simons Manufacturing Company, November 30, 1920, of the word “Simoniz” for use on a compound in the form of paste for cleaning and polishing automobile bodies, furniture, and the like; that appellant and its predecessor have used the registered trade-mark continuously throughout the United States and in foreign countries since 1918; that appellant has expended large sums of money in advertising its product and its trade-mark; and that appellant’s product is put up in cans and is sold to garages, jobbers, authorized “simonizing stations,” and in stores to the general public.

It further appears from the record that appellee’s product consists of a cleaner in paste form, sold in “pint cans,” and a “preserver” — a polish — in liquid form, sold in quart cans; that appellee’s product is sold to garages — authorized “permanizing” stations; and that the products of the respective parties are used in a similar manner and for the same purposes.

There is some evidence in the record to the effect that confusion has existed due to the similarity of the marks, and that appellee’s goods were being sold in “authorized simonizing stations.”

It is not argued here that the goods of the parties do not possess the same descriptive properties, nor that appellant is not the prior user of the trade-mark “Simoniz” for use on its goods. Therefore the sole question before us is, Are the marks confusingly similar.

The tribunals of the Patent Office held that the marks did not look alike, sound alike, nor convey the same thought. They referred, in their opinions, to the registered trade-mark “Kyanize” for use on paints and painters’ materials, registered February 5, 1907, and held that there was closer similarity between the marks “Simoniz” and “Kyanize” than existed between the marks “Simoniz” and “Permanize.”

It may be that the trade-marks “Kyanize” and “Simoniz” are confusingly similar, and that appellant was not entitled to the registration of its mark. However, that question is not before us and will not be considered by this court in this proceeding. Van Camp Sea Food Company, Inc., v. Westgate Sea Products, 48 F.(2d) 950,18 C. C. P. A. -, and eases therein cited.

It appears from the record that appellee was familiar with the trade-mark “Simoniz” at the time it adopted and began the use of the word “Permanize” as its trade-mark. Nevertheless, it selected a trade-mark closely simulating appellant’s trade-mark which had been advertised throughout the United States and abroad, and which, due to the popularity of appellant’s goods, was a valuable asset.

The marks are not identical, but the only material difference is in the first syllables— “Si” and “Per.” However, this court has repeatedly held that the public ought not to be required to dissect and analyze trademarks in order that confusion and deception might be avoided.

We are of opinion that the involved marks are confusingly similar, and that appellee is not entitled to have its mark registered.

The decision is reversed.

Reversed.


author: GRAHAM, Presiding Judge.

text:
    In re MINNESOTA VALLEY CANNING CO.
    Patent Appeal No. 2736.
    Court of Customs and Patent Appeals.
    May 25, 1931.
    William L. Symons and Semmes & Semines, all of Washington, D. C., for appellant.
    • T. A. Hostetler, of Washington, D. C., for the Commissioner of Patents.
    Before GRAHAM, .Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges.
   GRAHAM, Presiding Judge.

The appellant seeks to register the trade-mark “Off the Cob,” to be used on canned com. The examiner of interferences denied registration on the ground that the mark was descriptive, and this decision, on appeal to the Commissioner of the United States Patent Office, was affirmed upon the same ground.

The argument is .made here that the mark “Off the Cob” is not descriptive but only suggestive, and that it should therefore be registered.

The Supreme Court of the United States, in Warner & Co. v. Eli Lilly & Co., 265 U. S. 526, 528, 44 S. Ct. 615, 616, 68 L. Ed. 1161, said: “A name which is merely descriptive of the ingredients, qualities or characteristics of an article of trade cannot be appropriated as a trade-mark and the exclusive use of it afforded legal protection.” Applying this rule to the ease at bar, we have no doubt that the designation “Off the Cob,” as applied to canned com, is merely descriptive of the qualities or characteristics of the corn. If one were to apply the mark “On the Cob” to canned com which had been cut from the cob before canning, it would plainly be misdescriptive. It is also true that to apply to it the designation “Off the Cob” is descriptive.

Reference is had to the following cases decided by this court: Chicago Pneumatic Tool Co. v. Black & Decker Mfg. Co., 39 F.(2d) 684, 17 C. C. P. A. 962, where we held the word “Hyeycle,” applied to electrical tools, to be descriptive; and In re Autographic Register Co., 39 F.(2d) 718, 17 C. C. P. A. 1044, where we held the word “Autographic,” applied to manifold registers and similar articles, to be descriptive; California Cyanide Co. v. American Cyanamid Co., 40 F.(2d) 1003, 17 C. C. P. A. 1198, where we held the term “Cal-cyanide,” as a trade-mark for fumigants, to be descriptive. Other similar eases where words have been held descriptive are: L. P. Larson, Jr., Co. v. Wm. Wrigley, Jr., Co. (C. C. A.) 253 F. 914, involving “Spearmint”; Grinter v. Kinney Tobacco Co. (C. C. ) 12 F. 782, involving “Straight Cut”; Sears & Nichols Co. v. Brakeley, 38 App. D. C. 530, involving “Evergreen”; Kellogg Toasted Corn Flake Co. v. Quaker Oats Co. (C. C. A.) 235 F. 657, involving “Toasted Com Flakes”; Chapin-Sacks Co. v. Hendler Creamery Co. (D. C.) 231 F. 550, involving “The Velvet Kind.” In these eases the subject of deseriptiveness was thoroughly gone into and no necessity arises for a further discussion of that question.

The decision of the Commissioner of Patents is affirmed.

Affirmed.


text:
    In re STONEY.
    Patent Appeal No. 2716.
    Court of Customs and Patent Appeals.
    May 25, 1931.
    Kwis, Hudson & Kent, of Cleveland, Ohio (Watts T. Estabrook, of Washington, D. C., of counsel), for appellant.
    T. A. Hostetler, of Washington, D. C. (Howard S. Miller, of Washington, D. C., of counsel), for Commissioner of Patents.
    Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges.
   LENROOT, Associate Judge.

This is an appeal from a decision of the Board of Appeals of the United States Patent Office, affirming a decision of the Examiner, rejecting all of the claims of appellant’s application, three in number, for want of invention in view of the prior art.

Claims 1 and 3 are illustrative, and read as follows:

“1. The method of separating adherent p articles from an article which comprises subjecting said article to a series of percussive impulses in rapid succession and in one direction only.”
“3. The method of separating sand from castings which comprises imparting to said casting in rapid succession a series of substantially identical vibratory impulses tending to cause the sand to be dislodged from the surface thereof and preventing the transmission of interfering impulses to the easting.”

The alleged invention relates to the method of separating adherent particles from objects, as, for example, cleaning or freeing a metal easting of the adherent particles of sand that cling to the casting when the same is removed from the sand mold.

The references relied upon are: Michitisch, 1,085,928, February 3, 1914; Schuyler et al., 1,454,490, May 8, 1923; Reck et al., 1,574,693, February 23, 1926.

We have carefully examined the references cited and they clearly anticipate appellant’s alleged invention. No useful purpose would be served in discussing in detail the applicability of the references.

We find no error in the decision of the Board of Appeals, and the same is affirmed.

Affirmed.


author: ANDERSON, Circuit Judge,

text:
    DOMENECH v. HAVEMEYER et al. SAME v. SOUTH PORTO RICO SUGAR CO. (OF PORTO RICO). SAME v. SOUTH PORTO RICO SUGAR CO. (OF NEW JERSEY).
    Nos. 2479-2481.
    Circuit Court of Appeals, First Circuit.
    April 28, 1931.
    • William C. Rigby, of Washington, D. C. (James R. Beverley, Atty. Gen. of Porto Rico and Grant T. Trent and Edward A. Kreger, both of Washington, D. C., on the brief), for appellant.
    Francis E. Neagle, of New York City (Rounds, Dillingham, Mead & Neagle, of New York City, on the brief), for appellees.
    Before BINGHAM, ANDERSON, and WILSON, Circuit Judges. •
   ANDERSON, Circuit Judge,

This consolidated record presents appeals from three decisions of the court below sustaining demurrers to suits brought to recover income and excess profits taxes. In 2479, the defendant’s tax year ended on May 31, 1920; in 2480 and 2481, on September 30, 1920. In all three eases the taxes claimed are grounded on Act No. 43 of Porto Rico, approved July 1, 1921. The three defendants made seasonable returns under this act and paid the taxes assessed by the treasurer in accordance therewith: Russell & Company $16,848.10; the South Porto Rico Sugar Company of Porto Rico and the New Jersey Company, on a consolidated return, $255,-492.28. '

The treasurer, after examination of the books of the three concerns, made a new assessment on a consolidated return of the three, of $1,232,605.54. On appeal by the defendants to the Board of Review and Equalization, that board, found and ruled as follows:

(a) That the income tax return of the defendant Russell & Company should not be consolidated with the return of the South Porto Rico Sugar Company of New Jersey nor with the return of the South Porto Rico Sugar Company of Porto Rico.
(b) It confirmed the decision of the Treasurer of Porto Rico of February 28, 1924, in so far as he determined the gross income of Russell & Company at $5,281,-696.67 and the net income at $2,574,175.94.
(e) It confirmed the said decision of the Treasurer of Porto Rico fixing the invested capital of Russell & Company at the sum of $999,249.19.

Pursuant to these findings and rulings the treasurer, in May 1924, notified the defendants of additional taxes for said tax periods: Of $553,227.38 against the defendant Russell & Company; of $324,478.84 against the defendant South Porto Rico Sugar Company of Porto Rico; of $9,441.42 against the defendant South Porto Rico Sugar Company of New Jersey; all plus interest at 6 per cent, from May 18, 1924.

Defendants’ first contention is that Act No. 69 of 1923 cut off all power, if any, that Porto Rico had to levy these taxes .-

Section 2 of said Act No. 43 of 1921 reads:

“The first taxable year for the purposes of this Act, shall be the calendar year ending the thirty-first of December, 1920, or any accounting period ending during the calendar year 1920.”

Act No. 69 of 1923 provides in section 1 that section 2 of Act No. 43 of 1921 is “hereby amended as follows: • • * The first taxable year for the purposes of this Act, shall be the calendar year 1923 or any fiscal year ending on any date in the calendar year 1923.” And section 4 of Act No. 69 repeals all laws or parts of laws in conflict therewith, without a saving clause as to unpaid taxes or any accrued penalties. But none was necessary; it was subject to the general provision of section 3093 of the Rev. Stats, and Codes of Porto Rico, reading:

“The repeal of any statute by the Legislative Assembly shall not have the effect to release or extinguish any penalty, forfeiture or liability incurred under such statute, unless the repealing act shall so expressly provide and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture or liability.”

All liabilities and penalties of Act No. 43, if and in so far as valid, remained in full force. Compare also Rev. St. U. S. § 13 (1 USCA § 29); Hertz v. Woodman, 218 U. S. 205, 216, 30 S. Ct. 621, 54 L. Ed. 1001; United States v. Ayer et al. (C. C. A.) 12 F.(2d) 194, 197. This statute seems to have been overlooked by the court below and by counsel on both sides. It disposes of the first main contention of counsel for the defendants.

The next contention of the appellees is that the Legislature of Porto Rico had, in 1921, no power to enact an income and excess profits tax law. It is true that that Legislature has no powers except those granted expressly, or by necessary implication, by Congress. Benedicto, Treasurer, v. Porto Rican Am. Tobacco Co. (C. C. A.) 256 F. 422, 425.

But, by section 37 of the Organic Act of March 2, 1917 (39 Stat. 964 [48 USCA §§ 774, 821]), the Porto Rican Legislature was given general legislative powers, and by section 3 (39 Stat. 953 [48 USCA § 741]) was granted power to levy “taxes and assessments on property, internal revenue, and license fees, and royalties for franchises, privileges, and concessions.”

The Sixteenth Amendment had then been adopted; there is much weight to the contention that “internal revenue,” as used in this act, covered income taxes, without apportionment, in Porto Rico, as it then did in the United States. Cf. Bowers, Collector, v. Kerbaugh-Empire Co., 271 U. S. 170, 174, 46 S. Ct. 449, 70 L. Ed. 886. Pollock v. Farmers’ L. & T. Co., 158 U. S. 601, 15 S. Ct. 912, 39 L. Ed. 1108; Brushaber v. Union Pacific R. R., 240 U. S. 1, 17, 36 S. Ct. 236, 60 L. Ed. 493, L. R. A. 1917D, 414, Ann. Cas. 1917B, 713.

The federal income tax laws of 1913 (38 Stat. 180, § 2 M) and of 1916 (39 Stat. 776, § 23) applied to Porto Rico, and provided that such taxes should be there collected and applied to Porto Rican uses. By section 5 of the Act of October 3, 1917 (40 Stat. 300, 302), the Legislature of Porto Rico was given power to “amend, alter, modify, or repeal the income laws in force in Porto Rico.” This was repeated in the Act of February 24,1919 (40 Stat. 1057, § 261), and in the Act of November 23, 1921 (42 Stat. 227, 271, § 261), Congress provided that in Porto Rico and in the Philippines income taxes should be levied, assessed, and collected as provided by law prior to the passage of the federal act of that year, and further authorized the Porto Rican Legislature to amend, alter, modify or repeal the income tax laws in Porto Rico.

That Legislature, by Act No. 80 of 1919, repealed the federal income tax law, and then enacted an income tax law of its own. Laws of Porto Rico, 1919, § 77, p. 670.

Obviously there is very little difference-between power to “amend, alter, modify, or repeal” a federal law, and power to enact a like law de novo. Moreover, all Porto Rican laws are, under sections 23 and 34 of the Organic Act (39 Stat. 958, 960 [48 USCA § 842, and § 822 et seq.]), required to be reported to Congress, which reserved power to annul them. Congress never annulled this act or any similar act of Porto Rico. This is entitled to consideration in determining the extent of power granted to the Porto Rican Legislature. Chuoco Tiaco v. Forbes, 228 U. S. 549, 558, 33 S. Ct. 585, 57 L. Ed. 960; Fajardo Sugar Co. v. Holcomb (C. C. A.) 16 F.(2d) 92, 96, and eases cited.

Section 261 of the federal act of 1924 (43 Stat. 294 [48 USCA § 845]) corresponds in terms to that of section 261 of the act of 1921, and is again found in the federal act of 1926 (44 Stat. 52 [48 USCA § 845]); and in the United States Code, as revised in 1926 (44 Stat. part 1, p. 1623, § 845), is found the same provision giving the Porto Rican Legislature authority to amend, alter, ' modify or repeal the income tax laws in force in Porto Rico.

That Congress intended the Legislature of Porto Rico to have power to enact income tax laws is expressly shown by the Act of March 4, 1927 (44 Stat. 1418). This may fairly be construed as intended to make absolutely clear what had been implied before.

Taking the whole course of congressional dealing with the functions of the Porto Rican Legislature, we think that, by fair and necessary implication, and perhaps expressly, it was vested with power to enact an income tax law in 1921. This disposes of the appellees’ second main point.

The argued application of section 62 of Act No. 43 requires an outline of the relations of the three defendants.

The partnership' (Russell & Company) owns the sugar land, grows the cane, and sells it to the Porto Rican corporation (the mill), which in turn sells the raw sugar to the New Jersey Company which puts it on the market. The New Jersey corporation owns all the stock of the Porto Rican corporation except qualifying shares of directors. The majority of the shares of the New Jersey corporation belong to Russell & Company.

It is obvious and conceded that there is identity of interest between the two corporations. But mere ownership of the majority of stock of the New Jersey corporation obviously does not produce identity of interest between the partnership and the New Jersey corporation; the two concerns are not only separate legal entities, but the beneficial interests are different. Paragraph XV of the complaint in No. 2479 must be construed with paragraph XVH, which expressly alleges on information and belief that a mere majority of the stock of the New Jersey corporation is owned by the partnership.

Under intercompany contracts of sale of the cane and the raw sugar, the profit or loss of the ultimate public marketing of the sugar produced, falls to the New Jersey corporation. These contracts were long antecedent to the passage of Act No. 43 of 1921.

Section 62 of the Act No. 43 reads as follows:

“Where in the income return of any person, firm, association or corporation filed for the purposes of this Act, profits appear on account of sales of agricultural or industrial fruits or products made to other persons, firms, associations or corporations at a price lower than the ruling market price at the time that such sales were made, it shall be the duty of the Treasurer of Porto Rico to investigate the case — should there be probable cause to believe it is a question of fraud or an attempt to defraud the public treasury — ■ for the purpose of determining whether or no such person, either natural or artificial, as may appear as purchasing or selling the aforesaid fruits, merchandise, agricultural or industrial products at a price lower than the ruling price on the market at the time of the consummation of the sales, is the same entity whose income tax is under discussion, and whether or not there is any identity of interests, though under different names, designations or organizations between both entities subjects of the investigation referred to, for the purpose and object of recovering and collecting in such manner as may be proper, either by administrative readjustment or in lieu thereof by judicial proceedings, the income which really and positively should be paid to the Treasury, consideration being given to the ruling market price of the products sold in the market on the date of the sales the legality of which is being investigated.”

This section cannot, on the facts alleged, be applied to ground a tax on the partnership based on the much higher market prices alleged to have been paid the other colonos by the Porto Rican corporation. The con-, tract of sale of the cane was not void. There was no fraud on Porto Rico. A mere allegation of such fraud, without alleging any facts indicating fraud, is not enough. Chamberlain Works v. United States, 270 U. S. 347, 349, 46 S. Ct. 225, 70 L. Ed. 619; 49 C. J. 59.

Besides (if we could treat the three concerns as one), it is not even alleged that the New Jersey corporation sold the sugar — thus derived from the cane grown and sold by the partnership to the Porto Rican corporation, and thus, in practical effect, to the New Jersey corporation — at the high speculative prices then obtaining. Non constat, that the New Jersey corporation may not have held, until prices dropped, so much of its sugar that — considering the high prices paid the other colonos for cane — it might have made no profit at all.

At any rate, there is nothing alleged to show any such actual income to the partnership as the plaintiff seeks to impose income and excess profits taxes upon, and it is in effeet admitted that no such profits were received. The alleged income is nothing but fiat income — no more taxable than the paper profits stock speculators had in 1928 and 1929 — shortly, in many cases, to be changed into actual losses. Compare Eisner v. Macomber, 252 U. S. 189, 207, 40 S. Ct. 189, 64 L. Ed. 521, 9 A. L. R. 1570; Bowers v. Kerbaugh-Empire Co., 271 U. S. 170, 174, 46 S. Ct. 449, 70 L. Ed. 886. The complaint in No. 2479 does not state a cause of action.

The taxes now sought to be recovered in all three suits are largely excess profits taxes. We think them condemned by section 2 of the Organic Act (39 Stat. 952 [48 USCA § 737]), which requires the Legislature of Porto Rico to make its taxes riniform.

But this Act No. 43 of 1921, in section 17 (3), entitled “Excess Profits Taxes,” provides that: “In addition to the normal tax there shall be levied * * * on the net income exceeding $10,000 * * * an excess profits tax in the manner following: When the proportion between the net income and the capital invested is less than 15 percent, 5 percent on the net income exceeding 10 percent of the capital invested in the taxable year.” There follow, under section 17 (3), ten paragraphs dealing with the profits above 10 per cent, on the capital invested, in each case providing for taxes at a higher rate on the entire excess above the 10 per cent. It follows that a taxpayer whose net income was slightly below — say 20 per cent, on the capital invested — would be taxed on his whole net income above 10 per cent, at only 5% per cent.; while a taxpayer whose income was slightly above 20 per cent, would be taxed 6 per cent, on his- entire net income above 10 per cent, on the capital invested. In other words, a very slight difference in the net income of the taxpayer would result in a substantial* increase in the rate of taxation to which the bulk of his income would be subject. The higher rate (surtax) is not limited, in its incidence, to the amount in excess of the percentage at which the higher rate begins, as in the federal tax law. Compare Act. of October 3, 1917, § 2 (40 Stat. 300, 301), and Revenue Act of 1918, § 211 (a), 40 Stat. 1062. This cannot be sustained.

It is also plain that, in Nos. 2480 and 2481, the income of the two South Porto Rico Sugar Companies — one of Porto Rico and the other of New Jersey' — -must be consolidated. These corporations were clearly affiliated within the meaning of section 24 of the Act of 1921, supra. The fact that one corporation was organized in Porto Rico and the other in New Jersey is immaterial.

As noted above, the appeals are here from rulings sustaining the demurrers. The general result must be sustained, but without prejudice to any right the plaintiff may have to amend.

The judgments of the District Court are affirmed, with costs, and the eases are remanded for further proceedings not inconsistent with this opinion.