[256 U.S. 35, 36] 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.
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 [256 U.S. 35, 37] 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:
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:
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 proceedings in the case. Section 4914, Rev. Stats.; U. S. Comp. Stats. 9459.
If the decision of the Court of Appeals of the District of Columbia is not final, then the motion to dismiss the appeal should be sustained, and we have no authority to grant a writ of certiorari. Judicial Code, 250, 251 (Comp. St. 1227, 1228).
The nature of proceedings of the character now under consideration was considered in Frasch v. Moore, 211 U.S. 1 , 29 Sup. Ct. 6, in which the opinion of Chief Justice Alvey, speaking [256 U.S. 35, 39] for the Court of Appeals of the District of Columbia in Rousseau v. Brown, 21 App. D. C. 73, 80, explaining the nature of this statutory proceeding and affirming that it did not authorize a judgment, but only the return by the Court of Appeals of a certificate to the Commissioner of Patents, to be there entered of record to govern further proceedings in the case, was fully approved.
In Atkins v. Moore, 212 U.S. 285 , 29 Sup. Ct. 390, application for registration of a trade-mark was refused by the Examiner, which action was approved by the Commissioner, and affirmed on appeal by the Court of Appeals of the District of Columbia, an appeal and writ of error were allowed, both of which were dismissed in this court. The previous decisions of this court were reviewed by Chief Justice Fuller, speaking for the court, and in concluding the opinion he said:
We are of opinion that the principle there announced controls this case. No provision is made which permits this statutory proceeding to be carried beyond the decision of the Court of Appeals of the District of Columbia, the decision of which court is directed to be certified to the Commissioner of Patents. It is in no sense a final [256 U.S. 35, 40] judgment reviewable here upon writ of certiorari or appeal.
It is true that in Estate of Beckwith v. Commissioner of Patents, 252 U.S. 538 , 40 Sup. Ct. 414, this court allowed a writ of certiorari from a decision of the Court of Appeals of the District of Columbia, affirming a decision of the Commissioner of Patents, in an application to register a trade-mark. No question of the jurisdiction of the court was considered in that case, and an inadvertent allowance of the writ of certiorari does not establish the jurisdiction of the court. Fritch, Inc., v. United States, 248 U.S. 458, 463 , 39 S. Sup. Ct. 158.
It follows that the appeal must be dismissed, and the petition for a writ of certiorari denied.