Septkmber 



19i; 



THE INDIA RUBBER WORLD 



715 



tliis caj.e automobile tires, to a common carrier as a delivery to 

 the buyer, has an exception where the goods which were bought 

 and paid for, were delivered to the express company and the 

 seller neglected to state their value, $95.43, which neglect limited 

 the liability of the express company to but $50. The tires were 

 lost in transit and the buyer requested a second shipment which 

 was made. A suit was brought by the seller for the value of the 

 delivered goods. It was decided that the buyer was entitled 

 to tlie second shipment. The seller appealed but the judgment 

 was affirmed. [Northeastern Reporter, Vol. 116, page 781.] 



In re Gibney Tire & Rubber Co., United States District Court, 

 Eastern District of Pennsylvania, May 7, 1917. In an involuntary 

 proceeding in bankruptcy based on the bankrupt's admission in 

 writing of its inability to pay its debts and its willingness to be 

 adjudged a bankrupt, an adjudication was made within five days 

 after the return day of the subpoena, which are allowed under 

 the provision of the Bankruptcy Act, and creditors, who had not 

 then intervened, subsequently filed a petition to vacate the judg- 

 ment and permit them to defend, alleging only the solvency of the 

 bankrupt. It was held that, while such solvency would not 

 prevent a judgment on the ground upon which the proceeding 

 was based, this was not a sufficient reason for refusing to vacate 

 it, as creditors seeking the vacation of a judgment prematurely 

 entered are not required to show facts constituting a good answer 

 to the bankruptcy petition, and their allegation as to solvency 

 was not intended to serve as an answer, but to show a substantial 

 right on their part to intervene. [Federal Reporter, Vol. 241, 

 page 879.] 



Rubber Tr.\ding Co. v. Manhatt.ax Rubber Manufacturing 

 Co., Court of Appeals of New York, June 5, 1917. The Manhat- 

 tan Rubber Manufacturing Co. agreed to buy 15 tons of prime 

 thin Manitoba rubber at $1 a pound, delivery to be made about 

 live tons a month in September, October and November, 1912, 

 and billed on a credit of ten days. The first delivery made under 

 this contract was made in August and paid for in September 

 without previous inspection. Defects were found and 7,900 

 pounds were returned with the consent of the importers. When 

 the second shipment arrived in October, the buyers were notified 

 and asked to examine the rubber while on the dock or in the 

 warehouse, and they refused to accept the rubber until it could 

 be put through a test at their factory. The Trading company 

 refused to issue delivery orders until they received the acceptance. 

 The other shipment arrived in November and neither party 

 would recede from its position. Each party notified the other 

 that the contract had been broken. Part of the rubber was sold 

 at a reduced price and the rest was retained. Action was brought 

 to recover the profit which had been lost. Judgment was found 

 in favor of the sellers, and upheld by the Appellate Division of 

 the Supreme Court, but when taken to the Court of .\ppeals it 

 was reversed and a new trial granted, with costs to abide the 

 result. [Northeastern Reporter, Vol. 116, page 789.] 



MASTER TO EVALUATE HUNGER RIM PATENT. 



In an unusually detailed interlocutory decree. Judge Manton 

 has appointed James J. Kennedy, of New York City, as master 

 to go over the books of the Perlman Rim Corporation and de- 

 termine how much Louis DeF. Munger should receive in back 

 royalties on his patent as a result of winning his recent infringe- 

 ment suit. The decree contains the specific instruction that the 

 master is to "consider the nature of the invention, its utility and 

 the advantages to be gained from its use" as a basis for de- 

 termining the rate of royalty. The task of evaluating the patent 

 itself is best measured by the fact that the whole industry has 

 not yet been able to do so. It is one that will probably take 

 many months to accomplish, and further delay will be occa- 

 sioned by the fact that all is contingent upon the recent decision 

 being upheld on appeal. 



TRADE-MARK DECISIONS. 



COLOR NOT REGISTRABLE AS A TRADEMARK, 



DECISIONS of the Commissioner of Patents regarding the 

 registration of trade-marks of rubber goods of special 

 interest to manufacturers, are to the effect that color of the 

 goods is not sufficiently distinctive to be allow-ed as a trade-mark. 

 In the case of The B. F. Goodrich Co. v. Firestone Tire & Rubber 

 Co., 123 Ms. Dec. 60, May 22, 1917, opposition was filed to the 

 registration of a mark for tires, consisting of a circumferential 

 band of black, between two circumferential red bands. Opposer 

 used a black tread for its tire, with side walls of gray. The com- 

 missioner decided that it makes no difference whether the mark- 

 ing was for purposes of ornamentation, or as a trade-mark. The 

 color scheme is not distinctive enough for a trade-mark and 

 cannot, therefore, be monopolized. 



In an opposition filed against the preceding mark — Lee Tire & 

 Rubber Co. v. Firestone Tire & Rubber Co., 123 Ms. Dec. 62, 

 May 22, 1917— opposer claimed it first used red sides with a 

 gray tread for tires. The making of sides and tread of different 

 color is functional, because the parties agree that different rubber 

 should be used in the different places, as they are of different 

 color. The opposition is sustained. 



In an opposition to the registration of the same mark — Good- 

 year Tire & Rubber Co. v. l-irestone Tire & Rubber Co., 123 Ms. 

 Dec. 63, May 22, 1917 — opposer claimed he used a central cir- 

 cumfereniial band of blue. There is no valid trade-mark in 

 coloring an automobile tire to be one color on the sides and 

 another on the tread, regardless of what the colors are. It is 

 not only not distinctive, but the making of sides and tread of 

 different color is functional. There is no trade-mark in a device 

 that depends on color to distinguish it. This case is distinguished 

 from cases where a design is distinctive apart from the color. 

 Color is not definitive in any case ; there are innumerable shades 

 of any color. The proposed registration would give a group of 

 applicants a monopoly of the natural and practical designs for 

 ornamenting a tire to distinguish it from other tires. Distinctive- 

 ness of a mark must rest in something not equally open to use 

 by others. 



An opposition to application to register a black and red com- 

 bination of color for tires — Firestone Tire & Rubber Co. v. Good- 

 rich Co., 123 Ms. Dec. 68, May 22, 1917— was dismissed, on the 

 ground of prior use of gray and black colors by the applicant. 

 However, the mark is not properly registrable and should be 

 rejected. 



An opposition filed to the foregoing mark on the ground of 

 prior use of a black tread and red sides by opposer — Miller Rub- 

 ber Co. v. Firestone Tire & Rubber Co., 123 Ms. Dec. 66, May 

 22, 1917 — was sustained, for the reasons given in the preceding 

 decision. 



The case of L. Candee & Co. v. Hood Rubber Co., 123 Ms., 

 Dec. 78, is a petition to cancel a trade-mark applied to rubber 

 boots and shoes, consisting of a gray band encircling the top of 

 the articles. Petitioner having shown prior use, it is immaterial 

 whether the mark was structural or for ornament, or as a trade- 

 mark for the particular goods. Whatever significance the band 

 had in one case, it has in the other. If functional with the 

 petitioner, it is so for applicant, and the mark is therefore not 

 registrable. Color is not distinctive, in any case, and such a 

 mark is fundamentally improper. The mark is, therefore, prop- 

 erly cancelled. 



A Striking Comparison Appears in a Report of the Commis- 

 sioner of Patents, in a recent decision considering the applica- 

 tion of a trade-mark for rubber goods. He says, "There is no 

 such thing as a general trade-mark, any more than there could 

 be such a thing as one twin." — Well, that isn't an impossibility. 

 Perhaps you know somebody who is one twin. We do. His 

 brother is dead. 



