﻿I 
  

  

  The 
  Black 
  well 
  Litigation. 
  71 
  

  

  word 
  Durham 
  on 
  liis 
  tobacco, 
  or 
  heard 
  of 
  his 
  usiug 
  it 
  as 
  a 
  

   brand. 
  Certainly 
  it 
  cannot 
  be 
  insisted, 
  under 
  sucli 
  facts, 
  

   that 
  he 
  has 
  established 
  any 
  definite 
  user, 
  much 
  less 
  such 
  as 
  

   identified 
  the 
  brand 
  as 
  his. 
  

  

  With 
  the 
  onus 
  upon 
  him, 
  the 
  applicant 
  should 
  have 
  been 
  

   able 
  to 
  produce 
  at 
  least 
  one 
  disinierested 
  witness 
  to 
  substan- 
  

   tiate 
  Q 
  fact 
  which 
  is 
  of 
  such 
  vital 
  consequence 
  to 
  him. 
  That 
  

   he 
  attempted 
  a 
  great 
  deal 
  more, 
  we 
  cannot 
  doubt. 
  And 
  yet, 
  

   why 
  should 
  he 
  fail 
  ? 
  Here 
  was 
  his 
  landlord, 
  whom 
  he 
  saw 
  

   every 
  day 
  ; 
  here 
  were 
  his 
  neighbors, 
  whom 
  he 
  met 
  almost 
  as 
  

   often; 
  here 
  were 
  the 
  parties 
  who 
  bought 
  and 
  sold 
  his 
  tobacco 
  ; 
  

   here 
  were 
  those 
  who 
  must 
  know 
  the 
  fact, 
  if 
  any 
  one 
  could 
  

   know 
  it, 
  and 
  yet 
  not 
  one 
  of 
  them 
  to 
  prove 
  an 
  allegation, 
  to 
  

   which 
  even 
  he 
  himself 
  will 
  not 
  swear. 
  

  

  Can 
  he 
  hope 
  that 
  any 
  impartial 
  mind 
  will 
  be 
  convinced 
  

   by 
  so 
  palpable 
  an 
  inconsistency? 
  It 
  is 
  worse, 
  if 
  possible, 
  

   than 
  the 
  fraudulent 
  certificate, 
  signed 
  by 
  the 
  gentleman 
  of 
  

   high 
  standing, 
  which 
  was 
  the 
  cause 
  of 
  this 
  interference. 
  It 
  

   is 
  too 
  gross, 
  your 
  honor, 
  to 
  admit 
  of 
  explanation; 
  and, 
  if 
  it 
  

   is 
  not 
  the 
  grandest 
  ignoiauce, 
  it 
  is 
  the 
  most 
  brazen 
  fraud. 
  

  

  From 
  Barbee's, 
  as 
  stated, 
  Mr. 
  Wright 
  went 
  into 
  the 
  army, 
  

   so 
  that 
  in 
  the 
  above 
  we 
  have 
  the 
  full 
  history 
  of 
  his 
  alleged 
  

   manufacture 
  of 
  Durham 
  Smoking 
  Tobacco. 
  

  

  We 
  think 
  it 
  is 
  shown 
  beyond 
  any 
  reasonable 
  doubt, 
  that 
  

   during 
  this 
  entire 
  period 
  he 
  never 
  used 
  the 
  word 
  Durham 
  

   at 
  all. 
  We 
  think 
  the 
  evidence 
  proves 
  conclusively 
  that 
  the 
  

   word 
  " 
  Durham 
  " 
  was 
  not 
  used 
  as 
  a 
  mark 
  either 
  by 
  the 
  firm 
  

   of 
  Morris 
  & 
  Wright 
  or 
  by 
  Mr. 
  Wright 
  individually. 
  

  

  If 
  it 
  was 
  not, 
  Mr. 
  Armistead's 
  case 
  falls 
  of 
  its 
  own 
  weight. 
  

  

  commissioner's 
  decision. 
  

  

  The 
  decision 
  of 
  the 
  Commissioner 
  was 
  as 
  follows: 
  

  

  U. 
  S. 
  PATENT 
  OFFICE, 
  

   Washington, 
  D. 
  C, 
  June 
  5th, 
  1872. 
  

  

  Sir 
  : 
  — 
  In 
  the 
  matter 
  of 
  the 
  interference 
  of 
  Armistead 
  vs. 
  

   Blackwell, 
  for 
  improvement 
  in 
  " 
  Trade-Marks," 
  on 
  whicli 
  

   an 
  appeal 
  was 
  taken 
  to 
  tne 
  Commissioner 
  of 
  Patents 
  from 
  

   the 
  Primary 
  Examiner 
  by 
  W. 
  T. 
  Blackwell, 
  you 
  are 
  informed 
  

   that 
  the 
  decision 
  of 
  the 
  Pritnary 
  Examiner 
  is 
  reversed 
  by 
  

   the 
  Commissioner. 
  Very 
  Respectfully, 
  

  

  M. 
  D. 
  Leggett, 
  Commissioner. 
  

   W. 
  T, 
  Blackwell, 
  care 
  W. 
  W. 
  Leggett, 
  Present. 
  

  

  