1909 



GLEANINGS IN BEE CULTURE. 



305 



" alfalfa," and therefore an essential prerequisite 

 or condition to registration under the ten-year 

 proviso is lacicing in the case of the Frisbee Hon- 

 ey Co., and it can have no legal or valid claim 

 to the word " alfalfa" as a trade-mark for honey 

 through or by virtue of registration under the 

 ten-year provision of the Trade-maric Act. That 

 this view is correct, is to be seen by reference to 

 the decision of the Court of Appeals for the Dis- 

 trict of Columbia in Worcester Brenving Co. njs. 

 Riuter o Co., 133 O. G. 1190, which court is the 

 only one thus far that has passed upon the ques- 

 tion, and which in the case just mentioned said: 



There is but one way left in which appellee is entitled to have 

 its application for registration considered in this case, and that is 

 under the proviso to section 5 of the act of Congress of Febraary 

 20, 1905. which is as follows: 



" That nothing herein shall prevent the registration of any 

 mark used by the applicant or his predecessors, or by those from 

 whom title to the mark is derived, in commerce with foreign na- 

 tions, oramong the several States, or with the Indian tribes, which 

 was in actual and exclusive use as a trade-mark, of the applicant, 

 or his predecessors from whom he derived title, for ten years next 

 preceding the passage of this act." 



The record discloses an actual and continuous use by appellee 

 of the word '■ Sterling " as a trade-mark for ale for more than ten 

 years next preceding the passage of the act of Congress. If it 

 appears, therefore, that this use has been exclusive, even thougk 

 the word is descriptive and not susceptible of registration as a 

 technical trade-mark, appellee would still, by reason of its actual 

 and exclusive use for ten years next preceding the passage of the 

 act, be entitled to the right to register it. In the case of in re 

 Cahn, Belt Sf Co. (27 App. D. C. 177), this court said: 



" The last proviso of section 5, as amended and passed, was 

 not intended to provide for the registration of technical trade- 

 marks; for such marks had been cared for elsewhere in this act. 

 The proviso admitted the registration of marks, not in either of 

 the clauses prohibited by this section, if such marks were in ac- 

 tual and exclusive use as a trade-mark for ten years next preced- 

 ing the passage of the act. In respect to technical trade-marks, 

 this proviso is absolutely useless. It was intended to save the 

 right of registration to the marks described in the proviso. . . 

 The last proviso of section 5 was intended to refer only to marks 

 owned by the applicants, and in their actual and exclusive use of 

 ten years." 



It is clear that appellee, during the ten-year period, would have 

 had no right to exclude appellant from the use of the word " Ster- 

 ling " on the ground of its being a valid technical trade-mark. 

 Not possessing this rigJt, it is difficult to understand upon what 

 theory its use can be said to be exclusive. 



We think that the Commissioner of Patents erred in holding 

 that the word " exclusive," as used in the proviso of section 5, 

 means " the right to exclude." It has no reference to any right 

 possessed by the user. Since the word did not constitute a tech- 

 nical trade-mark, no right to exclude could be asserted. Inas- 

 much as the word is used in the statute in connection with the 

 words " actual use," and both expressions are used to quilify the 

 special right conferred by this ptovision of the act, we hold that 

 an actual use must be shown to have been possessed and enjoyed 

 by the applicant to the sole exclusion of all others. The use 

 could not be exclusive if, during the period, it appears that anoth- 

 er was using the same word as a trade-mark upon the same char- 

 acter of goods. It is not denied that, during five years of this 

 period prior to the act of 1905, appellant used continuously the 

 word " Sterling " as a mark on the same kind of goods on which 

 it was used by appellee. We are of the opinion that this is suf- 

 ficient to prevent appellee from claiming such an exclusive use 

 as would entitle it to register the word " Sterling " as a trade- 

 mark. 



The f aregoing case is especially pertinent, be- 

 cause in that case the word sought to be register- 

 ed was the word " Sterling," which, the court 

 pointed out, being descriptive, as is the word 

 "alfalfa," could not be appropriated as a techni- 

 cal trade-marlc. 



You will, therefore, see that in no possible 

 view of the matter, under the law and the facts as 

 I have above set them forth, can the Frisbee Honey 

 Co., or anybody else, validly or legally claim 

 any right ti monopolize the use of the word " al- 

 falfa" as a name for honey. 



Under the National pure-food law it is neces- 

 sary, when a label is applied to a food, that, in 

 order to avoid the offense of misbranding, it must 



truthfully state the name of the substance or 

 product. The law, therefore, makes it not only 

 a right, but a duty, when a label is used, for the 

 correct name of the article to be stated on the 

 label. In the case of honey, it would doubtless 

 be a sufficient compliance with the law simply to 

 use the name " honey;" but undoubtedly any de- 

 scriptive term or name that truthfully designates 

 the honey may also be used, such as the word 

 " alfalfa," providing, of course, it be not a word 

 or name to which some one may have the exclu- 

 sive right under section 5 of the Trade-mark Act 

 of Feb. 20, 1905; and, of course, no name or term 

 that constitutes a strict or technical trade-mark, 

 which is the exclusive property of another person, 

 can be used on the label. By the designation 

 "strict or technical trade-mark " I mean some 

 name or symbol of purely arbitrary character 

 that is not employed to describe the character or 

 qualities or composition, or the place of produc- 

 tion of the article. Instances of such a trade- 

 mark are the picture of a bear, your device of a 

 three-leaf clover with the initials "A. I. R. " on 

 the leaves, the word " Kodak," and the word 

 " Uneeda. " In such cases as these the national 

 pure-food law can be complied with by using the 

 known or accepted name of the product; and any 

 construction ot, or any supposed provision of that 

 law, which would appear to give a right to others 

 to use a trade-mark belonging exclusively to one 

 user would not only be unsound or invalid, but 

 it would be inconsistent with the purpose of the 

 law, which is to prevent the consu-ner being 

 misled or deceived in purchasing food articles; 

 and confusion or deception would result if what 

 has become the distinctive trade-mark or name 

 of one producer could be used by another. 

 Washington, D. C. 



[We sought this opinion, not alone because of 

 any legal ques'ion that might be involved between 

 the parties in Denver, but because we desired to 

 get information on the general question of what 

 might be the legitimate subject of a copyright — 

 a matter that is of far more importance to the 

 average user of honey-labels than the issue between 

 the parties in Denver. In view of the citations 

 as above given it is doubtful if the matter will 

 ever be brought before the courts. — Ed.] 



THE CANDYING OF COMB HONEY. 



Frequent Re-sorting of Old Honey to Sep- 

 arate the Candied Sections. 



BY FRANK RAUCHFUSS. 



It seems to me that it would interest honey- 

 producers to hear from honey-dealers and com- 

 mission merchants throughout the country as to 

 the manner in which lots of comb honey that 

 have started to granulate are handled by them. 

 I find that our commission firms here on the 

 street are selling the honey just as received from 

 the producers, no matter how long they may 

 have had it on their hands. As a consequence, 

 one grocer may receive a case that is in beautiful 

 condition, while the next one receives one that is 

 half granulated. If this man keeps his case and 

 unloads on the consumer there will be a lot of 

 people who will be disgusted with buying comb 



