Baldwin Co v. Howard Co Baldwin Co v. Same, s. 139

• Citation: 65 L.Ed. 816,256 U.S. 35,41 S.Ct. 405
• Decision Date: 11 April 1921
• Docket Number: 113,Nos. 139,s. 139
• Parties: BALDWIN CO. et al. v. R. S. HOWARD CO. BALDWIN CO. v. SAME
• Court: United States Supreme Court

256 U.S. 35

41 S.Ct. 405

65 L.Ed. 816

BALDWIN CO. et al.

v R. S. HOWARD CO.

BALDWIN CO.

v. SAME.

Nos. 139, 113.

Argued Jan. 14, 1921.

Decided April 11, 1921.

Messrs. Lawrence Maxwell, of Cincinnati, Ohio, and John E. Cross, of Baltimore, Md., for Baldwin Co.

Mr. Samuel S. Watson, of New York City, for R. S. Howard Co.

Mr. Justice DAY delivered the opinion of the Court.

No. 139 is here upon an appeal from a decision of the Court of Appeals of the District of Columbia reversing the decision of the Commissioner of Patents.

No. 113 is an application for a writ of certiorari to review the same decision of the Court of Appeals of the District of Columbia. The case is reported in 48 App. D. C. 437.

The Commissioner of Patents refused to cancel the certificates of registration of a trade-mark consisting of the word 'Howard' registered by the Baldwin Company, October 17, 1905, and made a like ruling refusing to cancel the certificate of registration of the word 'Howard' with the initials 'V. G. P. Co.,' arranged in monogram, registered March 8, 1898, which marks were registered as trade-marks for pianos. The appeals were heard together in the District Court of Appeals upon the appeal of the Howard Company.

Proceedings were brought in the Patent Office by the Howard Company against the Baldwin Company to cancel the certificates of registration. It appears that a suit was begun in the District Court of the United States for the Southern District of New York by the Baldwin Company against the Howard Company while the cancellation proceedings were pending, which resulted in a decree in favor of the Baldwin Company restraining the Howard Company from making or selling pianos bearing the word 'Howard,' but permitting it to use the marks 'R. S. Howard Company' and 'Robert S. Howard Company.' 233 Fed. 439. This decree was affirmed by the Circuit Court of Appeals for the Second Circuit. 238 Fed. 154, 151 C. C. A. 230.

The Baldwin Company filed in the Patent Office a certified copy of the record in the federal courts in New York, and in the Patent Office the Examiner of Interferences and the Commissioner of Patents, on appeal to him, held that the adjudication in the New York courts was a bar to the claim of the R. S. Howard Company to cancel the certificates of registration of the trade-mark 'Howard,' and dismissed the petition of the Howard Company; thereupon appeal was taken from the decision of the Commissioner to the Court of Appeals of the District. That court reversed the decision of the Commissioner of Patents, and directed the clerk to certify its decision as required by law.

The application in the Patent Office to cancel the trade-marks was under section 13 of the Trade-Mark Act of February 20, 1905, 33 Stat. 728, which provides:

'Sec. 13. That whenever any person shall deem himself injured by the registration of a trade-mark in the Patent Office he may at any time apply to the Commissioner of Patents to cancel the registration thereof. The Commissioner shall refer such application to the examiner in charge of interferences, who is empowered to hear and determine this question and who shall give notice thereof to the registrant. If it appear after a hearing before the examiner that the registrant was not entitled to the use of the mark at the date of his application for registration thereof, or that the mark is not used by the registrant, or has been abandoned, and the examiner shall so decide, the Commissioner shall cancel the registration. Appeal may be taken to the Commissioner in person from the decision of Examiner of Interferences.' Comp. St. § 9498.

The appeal from the decision of the Commissioner to the Court of Appeals of the District was under section 9 of the act, which provides:

'Sec. 9. That if an applicant for registration of a trade-mark, or a party to an interference as to a trade-mark, or a party who has filed opposition to the registration of a trademark, or party to an application for the cancellation of the registration of a trade-mark, is dissatisfied with the decision of the Commissioner of Patents, he may appeal to the Court of Appeals of the District of Columbia, on complying with the conditions required in case of an appeal from the decision of the Commissioner by an applicant for patent, or a party to an interference as to an invention, and the same rules of practice and procedure shall govern in every stage of such proceedings, as far as the same may be applicable.' Comp. St. § 9494.

A motion is made to dismiss the appeal. No specific provision is made for an appeal from the decision of the District of Columbia Court of Appeals reviewing the decision of the Commissioner of Patents, but the decision is to be certified to the Commissioner to govern further...