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289 FEDERAL REPORTER
ation of such a pump is required, nor do we think it is essential to test the operation of a pump that differs by the creation of less pressure or suction above the pump plunger, which suction obviously assists in raising the oil. The operation is obvious."
In view of the positive testimony concerning this particular installation, the object of the test, and the considerable period of time covered by it, and the fact that the pump element was old, we rule that the lower tribunals were right in concluding that this installation constituted a reduction to practice of the invention. We are unable to agree with the Assistant Commissioner that the pumping, which he finds took place, "may have been effected by suction rather than by a pump in the well.” We think such a conclusion inconsistent with the evidence and surrounding circumstances, as fully demonstrated by the lower tribunals.
The decision is reversed and priority awarded Cooper,
UNITED ELECTRIC CO. v. REPLOGLE.
(Court of Appeals of District of Columbia. Submitted March 15, 1923. De
cided May 7, 1923.)
1. Trade-marks and trade-names and unfair competition Ow21-Red band as
trade-mark for vacuum cleaners held anticipated.
The use of a red band around the base as a trade-mark for vacuum cleaners was anticipated by a prior registered trade-mark, consisting of a red ring and the words “Red Ring," since a purchaser who had been advised to buy a red ring cleaner would ordinarily accept the product
bearing the red band. 2. Trade-marks and trade-names and unfair competition Emo44Doubt as to
similarity between marks resolved in favor of first user.
Where a registered trade-mark was known, or should have been known, to the applicant before he adopted his trade-mark, any doubt as to the deceptive similarity between the marks should be resolved in favor of the first comer, since the field from which the applicant could have drawn its mark was practically unlimited, and there was no reason for adopting one closely resembling that of a business rival.
Appeal from the Commissioner of Patents.
Application by the United Electric Company for registration of a trade-mark, opposed by Daniel B. Replogle. From a decision of the Commissioner of Patents, sustaining the opposition, the applicant appeals. Affirmed.
Harry Frease, of Canton, Ohio, for appellant.
Before SMYTH, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.
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UNITED ELECTRIC CO. V. REPLOGLE
627 (289 F.) SMYTH, Chief Justice. The United Electric Company made 'application for the registration of a trade-mark entitled "A Red Band," applied to vacuum cleaners, as shown in the following drawing:
It showed that it had used the mark continuously in its business since 1918. Replogle opposed the registration on the ground that he owned a registered trade-mark which he had applied continuously to vacuum cleaners since its registration in 1912. The certificate of registration describes the mark as "a red ring and the words 'Red Ring, which is illustrated as follows:
(1) No testimony was taken by either party, and the matter was submitted on the single proposition by the applicant that the marks, although applied to goods of the same descriptive properties, were so dissimilar that there was no likelihood
MARK that, if used, they would produce confusion' in the minds of persons desiring to purchase vacuum cleaners. The applicant confines the use of its ring or band to the base of the motor, and counsel claims that this distinguishes it from the mark of the Above was printed red in opposer. But we do not think the position
original. in which applicant places its mark is determinative. As said by the Examiner of Interferences, Replogle by virtue of his registration"is entitled to assert ownership of the words 'Red Ring and the representation of a red ring as appliod to vacuum cleaners. The colored band applied to applicant's goods might aptly be described as a 'red ring,' and it is believed that a purchaser who had been advised to buy a 'Red Ring cleaner, or had seen a reference to a 'Red Ring' cleaner, would ordinarily accept applicant's product bearing the red band or ring as answering the description of 'Red Ring.'”
12] Replogle caused his mark to be registered in 1912. This was known, or should have been, to the applicant when it adopted its mark six years later. The field from which applicant could have drawn a
289 FEDERAL REPORTER
mark was practically unlimited. No just reason, therefore, is perceived for adopting one so closely resembling that of its business rival. If there was any doubt in our minds about the matter, but there is none, we would resolve it in favor of the first comer, Replogle. Waltke v. Schafer, 263 Fed. 650, 49 App. D. C. 254; Aunt Temima Mill Co. v. Blair Milling Co., 270 Fed, 1021, 50 App. D. C. 281.
The Commissioner was undoubtedly right in sustaining the opposition, and therefore we affirm his decision.
HOWERTON V. DISTRICT OF COLUMBIA. (Court of Appeals of District of Columbia. Submitted March 6, 1923. De
cided May 7, 1923.)
1. Physicians and surgeons em 6(12)- Osteopathy is within exception of phy.
sicians from requirement of license to practice podiatry.
The science of osteopathy has become sufficiently established to justify the classification of its practitioners within the exception of the regular practicing physicians from Act May 23, 1918, making it unlawful for any person, except regular practicing physicians, to practice podiatry without having passed an examination, and, even if not, an osteopath, who had practiced since 1909, would be within the exception of those
who had practiced podiatry during the past year. 2. Physicians and surgeons em 6(1)-Act requiring examination of podiatrists
does not apply to practice of recognized branch of thedicine; “podiatry.".
Act May 23, 1918, making it unlawful to practice podiatry in the District without having passed an examination, and defining “podiatry” as the surgical, medical, and mechanical treatment of any ailment of the human foot, except amputation, was not intended to interfere with
the general practice of any recognized branch of medical science. Writ of Error to the Police Court of the District of Columbia.
Thomas J. Howerton was convicted of practicing podiatry without having first passed the examination required by law, and he brings error. Reversed and remanded, with instructions to discharge the defendant.
Charles S. Baker, of Washington, D. C., for plaintiff in error.
Francis H. Stephens and Frank W. Madigan, both of Washington, D. C., for the District of Columbia.
Before SMYTH, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.
VAN ORSDEL, Associate Justice. This case is here on writ of error to the police court of the District of Columbia, The District charged plaintiff in error, Thomas Howerton, with practicing podiatry in the District of Columbia, without having first passed the examination required by law.
It appears that plaintiff in error, a graduate of the American School of Osteopathy at Kirksville, Mo., has been practicing his profession in
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this city for 12 years. “The Medical Practices. Act” (29 Stat. 198), passed in 1896, makes no provision for the examination of osteopaths; hence their right to practice in the District of Columbia has not been questioned. . It appears, from an agreed statement of facts filed herein, that plaintiff in error treated one Glover, also a practicing osteopath in this city, for a sprained foot— “the treatment consisting in the first instance of simple massage or manipulation with the bare hands, and in the second instance of similar massage, except that the defendant used on one hand a small device to assist in the manipulation, said device consisting of a rubber nodule held in place in the palm of the hand by means of a leather band bound around the palm; the use of such nodule enabling the operator to more easily and effectively manipulate the bones and tissues of the foot.”
The Act of Congress of May 23, 1918 (40 Stat. 560), among other things, provides:
“That from and after the passage of this act it shall be unlawful for any person, for compensation, to practice podiatry in the District of Columbia without first successfully having passed such examination concerning his fitness as the health officer of the District of Columbia may prescribe. The health officer aforesaid shall conduct the examination. * * * None of the provisions of this act shall apply to regular practicing physicians or surgeons. Neither shall they apply to podiatrists who have been practicing podiatry in the District of Columbia for one year next preceding the approval of this act. Podiatry [or chiropody] is hereby defined to be the surgical, medical or mechanical treatment of any ailment of the human foot, except the amputation of the foot or any of the toes, and, also, except the use of an anesthetic other than a local one.”
 Plaintiff in error has been practicing osteopathy in this District since 1909, and during that period has treated the feet of his patients when he found it necessary to do so. It follows, we think, that the method used is one common among osteopaths, and in using it plaintiff in error was practicing osteopathy and not podiatry. The science of osteopathy has become sufficiently established to justify the classification of its practitioners within the exception to the act, “regular practicing physicians.” However, as suggested by counsel for plaintiff in error, if he was practicing podiatry, and not osteopathy, inasmuch as his practice had extended from 1909 up to the present time, he would come within the clause of the act excepting from its provisions “podiatrists who have been practicing podiatry in the District of Columbia for one year next preceding the approval of this act” (act of 1918).  We are of opinion that the act is not intended to interfere with the general practice of any recognized branch of medical science; nor that a general practitioner, in any established branch of medical science, shall be limited in the treatment of his patients to all parts of the body except the foot, which, except in cases of surgical treatment involving amputation, shall be reserved for the podiatrist. Plaintiff in error was merely pursuing the practice of his profession within lawful limits, and was guilty of no infringement of the law. The judgment is reversed, with costs, and the cause remanded, with instructions to discharge the defendant.
MARSHALLTOWN LABORATORIES v. BRADY et al.
(Court of Appeals of District of Columbia. Submitted March 14, 1923. Decided May 7, 1923.)
Trade-marks and trade-names and unfair competition (S-34–Conveyance by retiring partner held to include interest in trade-mark. Where a partner who was retiring from the business conveyed his interest therein to his copartner, the bill of sale including the good will of the business, and the copartner continued to conduct the business until he transferred it to another, the sale of the good will, in the absence of qualifications, carried with it the right to the purchaser to use the trademark in further conduct of the business, so that the purchaser's successor was entitled to registration of the mark, and not the successors of the retiring partner.
Appeal from the Commissioner of Patents. Application by the Marshalltown Laboratories for registration of a trade-mark, in which George W. Brady and Haskins & Welton claimed ownership of the mark. From a decision awarding registration of the mark to Brady and Haskins & Welton, the Marshalltown Laboratories appeal. Affirmed.
Charles R. Allen, of Washington, D. C., for appellant.
Before SMYTH, Chief Justice, and ROBB, and VAN ORSDEL, Associate Justices.
VAN ORSDEL, Associate Justice. This appeal is from the decision of the Commissioner of Patents in a trade-mark interference adjudging appellees to be the owner of the trade-mark “Cellosilk” for surgical dressings, and entitled to registration thereof.
The mark was originated and used in 1917 by George W. Brady & Co., a partnership consisting of George W. Brady and W. W. Merritt, Jr. The business was carried on at Chicago, Ill., until July, 1918, when one Cooper, of Marshalltown, Iowa, opened negotiations for the purchase of Brady's interest in the company. While these negotiations were pending on July 13, 1918, Brady and Merritt dissolved partnership. No provision, however, was made for the disposal of the partnership assets.
The negotiations with Cooper failed. Merritt in the fall of 1918 went to Marshalltown, Iowa. Brady remained in Chicago and carried on the cellosilk business under the original firm name. Subsequently, in June, 1919, Brady purchased the interest of Merritt; the bill of sale including the good will of the business. Brady continued to carry on the business until February, 1920, when he sold the cellosilk business including the trade-mark to Haskins and Welton, who continued to use the mark. In August, 1918, Merritt, Cooper, and others formed a partnership at Marshalltown, Iowa, and made and sold cellosilk under the name of Marshalltown Laboratories. Merritt subsequently sold
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