1. A decision made by the Court of Appeals of the District of
Columbia upon an appeal from the Commissioner of Patents under § 9
of the Trade-Mark Act of February 20, 1905, is not reviewable in
this Court by appeal or certiorari under §§ 250, 251 of the
Judicial Code,
Page 256 U. S. 36
since such decisions are merely certified to the Commissioner to
govern his further proceeding in the case, as in patent matter
(R.S., § 4914), and are not therefore final judgments. P.
256 U. S.
38.
2. Assumption of jurisdiction by this Court in a case where no
question of jurisdiction was raised or considered does not
establish its jurisdiction over that class of cases. P.
256 U. S. 40.
Appeal to review 48 App.D.C. 437 dismissed; petition for a writ
of certiorari denied.
The case is stated in the opinion.
MR. JUSTICE DAY delivered the opinion of the Court.
No. 139 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 trademark 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
trademarks 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
Page 256 U. S. 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 F. 439. This
decree was affirmed by the Circuit Court of Appeals for the Second
Circuit. 238 F. 154.
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 trademark "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 trademarks
was under § 13 of the Trade-Mark Act of February 20, 1905, 33 Stat.
728, which provides:
"Sec. 13. That whenever any person shall deem himself injured by
the registration of a trademark in the Patent Office he may at any
time apply to the Commissioner of Patents to cancel the
registration thereof. The Commissioner shall refer such application
to the examiner in charge of interferences, who is empowered to
hear and determine this question and who shall give notice thereof
to the registrant. If it appear after a hearing before the
Page 256 U. S. 38
examiner that the registrant was not entitled to the use of the
mark at the date of his application for registration thereof, or
that the mark is not used by the registrant, or has been abandoned,
and the examiner shall so decide, the Commissioner shall cancel the
registration. Appeal may be taken to the Commissioner in person
from the decision of Examiner of Interferences."
The appeal from the decision of the Commissioner to the Court of
Appeals of the District was under § 9 of the act, which
provides:
"Sec. 9. That if an applicant for registration of a trademark,
or a party to an interference as to a trademark, or a party who has
filed opposition to the registration of a trademark, or party to an
application for the cancellation of the registration of a trademark
is dissatisfied with the decision of the Commissioner of Patents,
he may appeal to the Court of Appeals of the District of Columbia,
on complying with the conditions required in case of an appeal from
the decision of the Commissioner by an applicant for patent, or a
party to an interference as to an invention, and the same rules of
practice and procedure shall govern in every stage of such
proceedings, as far as the same may be applicable."
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.; 8
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.
The nature of proceedings of the character now under
consideration was considered in
Frasch v. Moore,
211 U. S. 1, in
which the opinion of Chief Justice Alvey, speaking
Page 256 U. S. 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,
application for registration of a trademark 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:
"In the light of the various details of the Act of February 20,
1905, and of the specific provisions of § 9, we were of opinion
[
Gaines v. Knecht, 212 U.S. 561] that proceedings under
the act were governed by the same rules of practice and procedure
as in the instance of patents, and the writ of error was
accordingly dismissed. The same result must follow in the present
case. Under § 4914 of the Revised Statutes, no opinion or decision
of the Court of Appeals on appeal from the Commissioner precludes
'any person interested from the right to contest the validity of
such patent in any court wherein the same may be called in
question,' and, by § 4915, a remedy by bill in equity is given
where a patent is refused, and we regard these provisions as
applicable in trademark cases under § 9 of the Act of February 20,
1905."
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
Page 256 U. S. 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,
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
trademark. 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,
248 U. S.
463.
It follows that the appeal must be dismissed, and the petition
for a writ of certiorari denied.
So ordered.