Is United States Ex Rel. Baldwin Co. v. Robertson still good law?

Opinion · Supreme Court of the United States

United States Ex Rel. Baldwin Co. v. Robertson

United States Ex Rel. Baldwin Co. v. Robertson, 265 U.S. 168 (1924)

Type: Opinion
Court: Supreme Court of the United States
Jurisdiction: Federal
Date: 1924-05-26
Topic: general

*175 Mr. Chief Justice Taft delivered the opinion of the Court. The Baldwin Company filed its bill in the Supreme Court of the District of Columbia against the Commissioner of Patents, seeking to enjoin that officer from canceling two registrations of trademarks for pianos of which the complainant claims to be the rightful owner. The trademarks were one for the word “Howard”, accompanied by the initials V. G.

Citator

UpLaw has not yet analyzed United States Ex Rel. Baldwin Co. v. Robertson. The absence of a flag is not a finding that it is good law.

Cited by: 50 opinions

Headnotes

Civil Procedure — Appellate Jurisdiction A decree of the Court of Appeals of the District of Columbia directing dismissal of a bill for want of jurisdiction, rendered upon a construction of the Trade Mark Act, is a final decree reviewable by the Supreme Court on appeal under § 250 of the Judicial Code, where the construction of the statute was drawn in question by the defendant. 265 U.S. at 176
Trademark Law — Registration Under § 9 of the Trade Mark Act, the registrant of a trademark who successfully resisted an application for cancellation before the Commissioner of Patents, but was defeated on the applicant's appeal to the Court of Appeals of the District of Columbia, may maintain a bill in equity under § 4915 of the Revised Statutes to enjoin the Commissioner from canceling the registration. 265 U.S. at 177
Trademark Law — Statutory Construction Section 9 of the Trade Mark Act assimilates trademark procedure to patent procedure and must be construed liberally so as to afford every remedy in trademark proceedings that is available in patent proceedings; consistent with that purpose, the final words of § 9 furnish a remedy in equity against the Commissioner in every case in which an appeal to the Court of Appeals first lies, and the inherent differences between trademarks and patents do not prevent giving effect to that remedial purpose. 265 U.S. at 177-178
Trademark Law — Remedies — Interfering Registrations The special provision in § 22 of the Trade Mark Act for a suit in equity between claimants of interfering registered trademarks, in which the Commissioner is not a party, does not exclude the broader remedy under § 9, which encompasses a party applying to register an unregistered trademark that interferes with one already registered. 265 U.S. at 179
Civil Procedure — Statute of Limitations A bill in equity under § 4915 of the Revised Statutes to enjoin the Commissioner of Patents from canceling a trademark registration pursuant to a decision of the Court of Appeals is not barred by the one-year period of § 4894 where the delay beyond that period is justified by the taking of an appeal to the Supreme Court that was dismissed for want of jurisdiction and the bill was filed within thirty days after that dismissal. 265 U.S. at 181

BALDWIN CO.v. ROBERTSON,265 U.S. 168(1924)

44 S.Ct. 508

UNITED STATES EX RELATIONE THE BALDWIN COMPANYv. ROBERTSON, AS

COMMISSIONER OF PATENTS, AND R.S. HOWARD COMPANY.

APPEAL FROM THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA.

No. 251.

Argued April 29, 1924.

Decided May 26, 1924.

1. A decree of the Court of Appeals of the District of Columbia directing dismissal of a bill for want of jurisdiction upon a construction of the Trade Mark Act, is reviewable here by appeal, under Jud. Code, § 250. P. 176. 2. Under § 9 of the Trade Mark Act, the registrant of a trade-mark who successfully resisted an application to cancel before the Commissioner but was defeated on his opponent's appeal to the Court of Appeals of the District of Columbia, may maintain a bill under Rev. Stats., § 4915, to enjoin the Commissioner from canceling the registration.American SteelFoundriesv.Robertson,262 U.S. 209. P. 177. 3. A bill brought under Rev. Stats., § 4915, to enjoin the Commissioner of Patents from canceling a trade-mark registration pursuant to a decision of the Court of Appeals, is not barred by Rev. Stats., § 4894, where the delay beyond the period there prescribed was justified by the taking of an appeal to this Court which was, however, dismissed for want of jurisdiction. P. 181. 287 F. 942;52 App.D.C. 368, reversed; certiorari denied.

APPEAL from a decree of the Court of Appeals of the District

of Columbia reversing a decree of the Supreme Court of the

District, which enjoined the cancellation of a trade-mark

registration, and directing that the bill be dismissed for want

of jurisdiction.

Mr. Frederic D. McKenney, with whomMr. John SpaldingFlannery, Mr. Lawrence MaxwellandMr. John E. Crosswere on the brief, for appellant.Mr. Samuel S. Watsonfor appellees.

In an action under the patent laws there is no appeal to this

Court.Chottv.Ewing,237 U.S. 197;Hutchinson,

Page 169

Pierce Co. v.Loewy,217 U.S. 457;Gompersv.United

States,233 U.S. 604;Chapmanv.United States,164 U.S. 436.

Section 4915, Rev. Stats., does not authorize this action. It

is a statutory provision to secure a purely statutory right; that

is, to secure a patent. Its language is unmistakably plain. As

pointed out inGreenwoodv.Dover, 194 F. 90, the section

has come down to us without substantial change from the time when

there was no review by any court or judge of decisions of the

Commissioner of Patents. Its language goes back to the Patent Act

of 1836, when there was first created a board of examiners.

InButterworthv.Hoe,112 U.S. 50, and inUnited States

v.Duell,172 U.S. 576, this Court summarized all the

instrumentalities provided by Congress since the foundation of

the Government for the granting of patents and traced the

development of appeals, viz:

In 1793 appeals might be taken to three arbitrators; in 1836

appeals might be taken to the Board of Examiners composed of

three disinterested persons whose decision was to be certified to

the Commissioner of Patents, who "shall be governed thereby in

further proceedings to be had on such application," and remedy by

bill in equity was first provided; in 1839, somewhat modified in

1849 and 1852, appeal was provided from the Commissioner to one

of the judges of the Circuit Court of the District of Columbia;

in 1870 an appeal was provided from the decision of the

Commissioner to the Supreme Court of the District sitting in banc

"whose decision was to govern further proceedings in the case";

in 1893 appeals were transferred from the Supreme Court of the

District sitting in banc to the Court of Appeals of the District,

which is the present status.

While Congress provided for the granting of patents in 1790

(c. 7,1 Stat. 109), it made no enactment in any way relating to

trade-marks until 1870, and no valid enactment

Page 170

prior to 1881. There is a wide and substantial difference between

patents and trade-marks.Butterworthv.Hoe, supra; Trade-Mark

Cases,100 U.S. 82.

The registration of a trade-mark is solely a statutory

privilege and the statutory limitations are strictly construed.

By the Trade Mark Act, Congress granted power to cancel

trade-mark registrations exclusively to the Commissioner of

Patents, subject only to review by the Court of Appeals of the

District of Columbia. Prior to the Act of 1905, there was no

provision for canceling a trade-mark registration, and there was

no direct review, judicial or administrative, by appeal or

otherwise, of decisions of the Commissioner upon matters relating

to the registration of trade-marks.South Carolinav.

Seymour,153 U.S. 353. No court has ever assumed the right to

cancel a trade-mark registration, except the Court of Appeals of

the District by the procedure expressly provided by the Trade

Mark Act itself. Section 13 of that act provides for the

cancellation of a trade-mark registration by the Commissioner

when the registrant was not entitled to the use of the

trade-mark. By § 9, appeal may be taken from the Commissioner to

the Court of Appeals of the District.

The "use" referred to has been repeatedly held "to mean the

right of exclusive use."Magic Curler Co. v.Porter, C.D.

1907, 163. The remedy is full, fair and summary, with appeal from

the examiner to the Commissioner, and with no time limit for the

application,Plantenv.Gedney, 224 F. 382.

Section 22 provides for the cancellation of trade-mark

registrations when there are interfering registrations by suit in

equity. This section corresponds to § 4918, Rev. Stats.,

applicable to interfering patents. The Trade Mark Act fully

provides for every case, both when the Commissioner wrongfully

refuses to register a trade-mark

Page 171

and when he erroneously grants registration. No trade-mark

registration has ever been canceled under § 4915, Rev. Stats.; no

patent has ever been canceled under § 4915, Rev. Stats.

Except in the case of interfering patents, it is settled law

that patents for inventions may be canceled only by the United

States, and only under the general principles of equity, and this

right is solely within the power of the United States. It has

been settled that § 4915, Rev. Stats., does not authorize an

action to cancel a patent, even by the United States.Mowryv.

Whitney, 14 Wall. 434;United Statesv.American Bell Tel.

Co.,128 U.S. 315;Samev.Same,159 U.S. 548;Briggsv.

United Shoe Machinery Co.,239 U.S. 48.

To interpret § 4915 as authorizing the action at bar, which is

to enjoin the cancellation of a trade-mark registration, requires

a rewriting of § 4915, and the incorporation into the section of

both words and subject matter entirely foreign to its present

plain language. Such an interpretation "is not to be attained by

striking out or disregarding words that are in the section, but

by inserting those that are not there now. This is no part of our

duty."Trade-Mark Cases,100 U.S. 82;Hillv.Wallace,

259 U.S. 44;United Statesv.Temple,105 U.S. 97;United

Statesv.First Natl. Bank,234 U.S. 245.

As far as counsel has been able to discover, there has been

only one decision which even touches the question at bar, by any

court, during the years since trade-marks have been registered,

and that was in the recent case ofLoughranv.Quaker City

Chocolate Co., 286 F. 694, in which the court held that §

4915, Rev. Stats., did not authorize an action to cancel a

trade-mark registration, although it held that § 4915 authorized

an application to secure registration of a trade-mark.

It is respectfully submitted thatAtkins Co. v.Moore,

212 U.S. 285, andAmerican Steel Foundriesv.Robertson,

Page 172

262 U.S. 209, have no application, having to do solely with

securing the registration of a trade-mark, while the case at bar

has to do with the cancellation of a registration; that is, to

enjoin a cancellation.

If § 4915, Rev. Stats., does not authorize an action to cancel

a patent, much less can it be interpreted to authorize an action

to cancel the registration of a mark; and much less still to

authorize an action to enjoin the cancellation of a registration

of a mark which the Court of Appeals of the District has adjudged

should be canceled.

InWestinghouse Elec. Co. v.Ohio Brass Co. 186 F. 518,

520, which was an action for a patent under § 4915, Rev. Stats.,

the court said: "The right to retry the merits of an application

for a patent, by bill in equity, . . . is purely statutory, and

is subject to such restrictions as Congress may prescribe."

The Supreme Court of the District is without cognizance of the

class of cases to which this case belongs, without power to

adjudicate concerning the subject matter here involved.Cooper

v.Reynolds, 10 Wall. 308;In re Sawyer,124 U.S. 200.

There is no presumption of jurisdiction where a court,

although one of general jurisdiction, is called upon to exercise

special statutory powers,Galpinv.Page, 18 Wall. 350; nor

is there ever any presumption that Congress intended to provide a

further review or a retrial.Ferryv.United States,

85 F. 550;Reynoldsv.Stockton,140 U.S. 254.

Respondent contends that all provisions provided by Congress

for the cancellation of trade-mark registrations are contained in

§§ 13 and 9 of the Trade Mark Act of 1905, and that these

provisions are exclusive, whether regarded as judicial or

administrative, except as provided by § 22 of the act, which is

applicable only when there are interfering registrations.

Page 173

It is familiar doctrine that where a right, privilege or

remedy is created by statute, the provisions of the statute

govern, limit and control the right or remedy and are exclusive.

Wilder Mfg. Co. v.Corn Products Co.,236 U.S. 165.

By the Trade Mark Act itself Congress regulated the whole

subject of cancellation of trade-mark registrations, which was a

subject matter entirely within its control and discretion,

United Statesv.American Bell Tel. Co.,167 U.S. 224;

United Statesv.Duell,172 U.S. 576,589; the provisions

which Congress made are comprehensive; they embrace the whole

subject; it is respectfully submitted that these provisions are

exclusive.

It is plain that the cancellation provision "was a new

remedy", provided as a part of the registration statute itself,

"and as the mode of pursuing it was specially pointed out, that

mode must be pursued", and that "the remedy thus prescribed is

exclusive of all others".Arnsonv.Murphy,109 U.S. 238;

Middletown Natl. Bankv.Toledo, etc., Ry. Co.,197 U.S. 394;

Cook County Bankv.United States,107 U.S. 445;Jacksonv.

Cravens, 238 F. 117;Butterworthv.Hoe,112 U.S. 50;

Globe Newspaper Co. v.Walker,210 U.S. 356;Hills Co. v.

Hoover,220 U.S. 329;Blumenstock Bros. v.Curtis Publishing

Co.,252 U.S. 436.

If the trade-mark registration statutes are to be regarded as

administrative provisions, the courts have no jurisdiction to

review their quasi-judicial decisions beyond what is expressly

conferred by the Trade Mark Acts themselves.Kellerv.Potomac

Electric Power Co.,261 U.S. 428;United Statesv.Duell,

172 U.S. 576;Nessv.Fisher,223 U.S. 683;Fong Yue Ting

v.United States,149 U.S. 698.

If it be held that § 4915, Rev. Stats., authorizes this

action, it is respectfully submitted that the case at bar was not

brought in time.

Page 174

It has been settled by the decisions of this Court that an

action under § 4915 must be brought within one year from the date

of the decision of the Court of Appeals of the District in the

Patent Office proceeding, unless excuse "to the satisfaction of

the court" is pleaded and shown. None is here pleaded.Gandyv.

Marble,122 U.S. 432; Rev. Stats., § 4894, as amended by Act of

March 3, 1897, c. 391,29 Stat. 694;Butterworthv.Hoe,

112 U.S. 50;American Steel Foundriesv.Robertson,262 U.S. 209;

Colemanv.American Mach. Co., 235 F. 531;McKnightv.

Metals Co., 128 F. 51;In re Hien,166 U.S. 432;

Westinghouse Elec. Co. v.Ohio Brass Co., 186 F. 518;

Suttonv.Wentroath, 247 F. 493.

The appeals of the Baldwin Company to this Court, which were

dismissed for want of jurisdiction, and its applications for

writs of certiorari, which were denied (256 U.S. 35), cannot be

held to have extended the time within which to file the bill of

complaint at bar.Westinghouse Elec. Co. v.Ohio Brass Co.,

supra; McMillan Contracting Co. v.Abernathy,263 U.S. 438.

Obviously, a litigant, by choosing a wrong court or a wrong

remedy, cannot continue a litigation indefinitely when the

statutes provide otherwise, as might be done if the time limit

could be extended by selecting the wrong court. If this could be

done, the statute which limits the time would be a dead letter.

Credit Co. v.Arkansas Central Ry. Co.,128 U.S. 258,261;

Conboyv.First Natl. Bank,203 U.S. 141,145;Blafferv.

New Orleans Water Co., 160 F. 389. It is the date of the

decision of the Court refusing the patent which is the

controlling date.Gandyv.Marble, supra, 439, 440;

Mattullath Aeroplane Co. v.Newton, 1921 C.D. 103; 279 O.G.

730;Colemanv.American Co., 235 F. 531;In re Hien,

166 U.S. 432.

When the time is limited by act of Congress, it is absolute

when the right is strictly statutory. It is jurisdictional.The

Bayonne,159 U.S. 687;Stevensv.Clark,

Page 175

62 F. 321;Credit Co. v.Arkansas Central Ry. Co.,128 U.S. 258;

In re McCall, 145 F. 898.

Rules or orders of the courts do not enlarge the time limited

by acts of Congress.Conboyv.First Natl. Bank,203 U.S. 141;

Credit Co. v.Arkansas Central Ry. Co.,128 U.S. 258;

United Statesv.Fidelity Deposit Co., 155 F. 117;

Arnsonv.Murphy,109 U.S. 238.

As an action under § 4915, Rev. Stats., is "a part of the

application for a patent" (American Steel Foundriesv.

Robertson,262 U.S. 209), it is governed by the rules

applicable thereto.

The time to take appeals from the Patent Office to the Court

of Appeals of the District (40 days) is strictly enforced.

Burtonv.Bentley,14 App.D.C. 471;Rossv.Loewer,

9 App.D.C. 563;In re Hien,166 U.S. 432. Time is reckoned from

the date of the decision of the Court of Appeals and not from the

time that notice of the decision is sent to, or received by, the

party against whom made (Burtonv.Bentley, supra,) and the

running of the time is not suspended by filing a petition for a

rehearing.Rossv.Loewer, supra.

MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.

The Baldwin Company filed its bill in the Supreme Court of the District of Columbia against the Commissioner of Patents, seeking to enjoin that officer from canceling two registrations of trademarks for pianos of which the complainant claims to be the rightful owner. The trademarks were one for the word "Howard", accompanied by the initials V.G.P. Co. arranged in a monogram dated March 8, 1898, and the other the word "Howard" printed or impressed in a particular and distinctive manner dated October 17, 1905. The R.S. Howard Company came into the case as an intervener and filed an answer denying the right of the complainantPage 176to continue to enjoy such registrations and resisting the injunction to prevent the cancellation. The Commissioner of Patents as defendant also filed an answer denying the right of the complainant to the relief sought. The intervener also filed a motion to dismiss the bill for lack of jurisdiction in the court to entertain it. The court denied the motion to dismiss the bill and enjoined cancellation pending the final disposition of the cause. An appeal from this interlocutory order was taken under § 7 of the Act of February 9, 1893, establishing the Court of Appeals for the District of Columbia (27 Stat. 434, c. 74). The Court of Appeals reversed the Supreme Court and remanded the cause with instructions to dismiss the bill. Appeal to this Court was sought and allowed under § 250 of the Judicial Code, which provides as follows:

"Any final judgment or decree of the Court of Appeals of the District of Columbia may be reexamined and affirmed, reversed, or modified by the Supreme Court of the United States, upon writ of error or appeal, in the following cases:

"First. In cases in which the jurisdiction of the trial court is in issue; but when any such case is not otherwise reviewable in said Supreme Court, then the question of jurisdiction alone shall be certified to said Supreme Court for decision.

. . . .

"Sixth. In cases in which the construction of any law of the United States is drawn in question by the defendant."

The errors assigned were the holding that the Supreme Court was without jurisdiction to entertain the suit, and the direction to dismiss the bill on that account. In addition to the appeal, the appellee in the Court of Appeals petitioned for a certiorari which is now pending.

As the decree of the Court of Appeals directs the dismissal of the bill for lack of jurisdiction, it is a final decree.Page 177Shafferv.Carter,252 U.S. 37,44. As the court based its conclusion upon the construction of § 9 of the Trade Mark Act (33 Stat. 727), and § 4915, Rev. Stats., which was specifically drawn in question by the intervener, and necessarily by the defendant in his answer in denying the complainant's right to relief as claimed by him in his bill under said two sections, we think the appeal was rightly allowed and that the petition for certiorari should be denied.

The controversy between the parties litigant has had several phases. In August, 1914, R.S. Howard Company sought to cancel the registration of the two trademarks of Baldwin Company, already referred to, by application to the Commissioner. The Commissioner refused, but upon appeal to the Court of Appeals of the District, the decision of the Commissioner was reversed and this was duly certified to the Commissioner.48 App.D.C. 437. The Baldwin Company appealed to this Court and filed an application for a certiorari as well. The appeal was dismissed and the certiorari denied on the ground that the certificate of the Court of Appeals to the Commissioner was not a final judgment, reviewable here upon appeal or certiorari.256 U.S. 35. This was April 11, 1921, and on May 7, 1921, the Baldwin Company filed the original bill in this case in the Supreme Court of the District against the Commissioner of Patents, seeking an injunction against the canceling of the trademarks in question. By an amended bill, there was set forth the record in a suit between R.S. Howard Company and Baldwin Company in New York, resulting in an injunction against the use of the word Howard without prefix or suffix by the R.S. Howard Company in sales of pianos. 233 F. 439; 238 F. 154.

The main question we have here to consider is whether, by the statutes applicable to procedure in settling controversies over the registration of trademarks in interstatePage 178and foreign trade, a remedy by bill in equity to enjoin the Commissioner of Patents from canceling a registered trademark is given to the owner of the trademark so registered. We are to find the answer in § 9 of the Trade Mark Act (33 Stat. 727, c. 592) and in § 4915 of the Revised Statutes. Section 9 provides as follows:

"That if an applicant for registration of a trade-mark, or a party to an interference as to a trade-mark, or a party who has filed opposition to the registration of a trade-mark, or party to an application for the cancellation of the registration of a trade-mark, 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."

Section 4915, Rev. Stats., provides as follows:

"Whenever a patent on application is refused, either by the Commissioner of Patents or by the supreme court of the District of Columbia upon appeal from the Commissioner, the applicant may have remedy by bill in equity; and the court having cognizance thereof, on notice to adverse parties and other due proceedings had, may adjudge that such applicant is entitled, according to law, to receive a patent for his invention, as specified in his claim, or for any part thereof, as the facts in the case may appear. And such adjudication, if it be in favor of the right of the applicant, shall authorize the Commissioner to issue such patent on the applicant filing in the Patent-Office a copy of the adjudication, and otherwise complying with the requirements of law. In all cases, where there is no opposing party, a copy of the bill shall be served on the Commissioner; and all the expensesPage 179of the proceeding shall be paid by the applicant, whether the final decision is in his favor or not."

We have held that the assimilation of the practice in respect of the registration of trademarks to that in securing patents as enjoined by § 9 of the Trade Mark Act makes § 4915, Rev. Stats., providing for a bill in equity to compel the Commissioner of Patents to issue a patent, applicable to a petition for the registration of a trade-mark when rejected by the Commissioner.American Steel Foundriesv.Robertson,262 U.S. 209;BaldwinCo. v.Howard Co.,256 U.S. 35,39;Atkins Co. v.Moore,212 U.S. 285,291.

The present case presents this difference. The defeated party in the hearing before the Commissioner is not asking registration of a trademark but is seeking to prevent the cancellation of trademarks already registered. Section 9 provides for appeals to the District Court of Appeals not only for a defeated applicant for registration of a trademark, but also for a dissatisfied party to an interference as to a trademark, a dissatisfied party who has filed opposition to the registration of a trademark and a dissatisfied party to an application for the cancellation of the registration of a trademark. It seems clear that the complainant below was a dissatisfied party to an application for the cancellation of the registration of a trademark. We think that both the applicant for cancellation and the registrant opposing it are given the right of appeal to the District Court of Appeals under that section.

The next inquiry is whether, in addition to such appeal and after it proves futile, the applicant is given a remedy by bill in equity as provided for a defeated applicant for a patent in § 4915, Rev. Stats. We have in the cases cited given the closing words of § 9 a liberal construction in the view that Congress intended by them to give everyPage 180remedy in respect to trademarks that is afforded in proceedings as to patents, and have held that under them a bill of equity is afforded to a defeated applicant for trade-mark registration just as to a defeated applicant for a patent. It is not an undue expansion of that construction to hold that the final words were intended to furnish a remedy in equity against the Commissioner in every case in which by § 9 an appeal first lies to the Court of Appeals. This necessarily would give to one defeated by the Commissioner as a party to an application for the cancellation of the registration of a trademark, after an unsuccessful appeal to the advisory supervision of the Court of Appeals, a right to resort to an independent bill in equity against the Commissioner to prevent cancellation.

It is pointed out, as militating against our interpretation of § 9 and an assimilation of trademark procedure to that in the case of patents, that, after a patent issues, there is no proceeding provided by which a patent can be canceled except on suit of the United States.Mowryv.Whitney, 14 Wall. 434, 439;United Statesv.American Bell Tel. Co.,128 U.S. 315,368,370;United Statesv.American Bell Tel. Co.,159 U.S. 548,555;Briggsv.United Shoe Machinery Co.,239 U.S. 48,50. That is true; but a registration of a trademark may be canceled, and the purpose of Congress by § 9 of the Trade Mark Act was to give to defeated applicants in the Court of Appeals the same resort to a court of equity as was given to defeated applicants for patentsso far as the same was applicable. The applicants in § 9 were of four kinds and to each of them were intended to be accorded the same resort to the Court of Appeals and the same remedy in equity as to the applicant for a patent in § 4915. The inherent differences between trademarks and patents should not prevent our giving effect to the remedial purpose of Congress in carrying out the analogies between the two classes of privileges to secure a common procedure.Page 181

The argument is made that § 9 should not be held to authorize the use of a suit in equity for all of the four cases in which appeals are provided to the Court of Appeals from the Commissioner and are unsuccessful, because by § 22 of the same act there is a special provision for a remedy in equity where there are interfering registered trademarks. It is said this excludes the inference that such a remedy is also provided in § 9, on the principleexpressio unius exclusio alterius. An examination of § 22 shows that it refers to an independent suit between claimants of trademarks both of which have already been registered. The Commissioner is not a party to such litigation but is subject to the decree of the court after it is entered. It is just like the proceeding in § 4918 to settle controversies between interfering patents already granted by the Patent Office. Section 9 of the Trade Mark Act is wider than § 22 in its scope. It includes one who applies for registration of an unregistered trademark which interferes with one already registered.

On the whole, we think that our decision inAmerican SteelFoundriesv.Robertson,262 U.S. 209, leads us necessarily to sustain the jurisdiction of the Supreme Court of the District to entertain this bill.

Finally, it is objected that this bill was not in time. It was filed more than two years and two months after the decision of the Court of Appeals in the first appeal from the Commissioner of Patents. It is contended that underGandyv.Marble,122 U.S. 432, § 4894 Rev. Stats. applies to any bill in equity under § 4915 and compels the dismissal of the bill if it is not prosecuted within one year after the adverse decision in the Court of Appeals, unless it appears to the satisfaction of the court that the delay was unavoidable.In re Hien,166 U.S. 432,438;American Steel Foundriesv.Robertson,262 U.S. 209,212,213. There was here, however, justification for the delay, in the appeal taken to this Court which was dismissed.Page 182256 U.S. 35. That decree was entered April 11, 1921, and this bill was filed within thirty days thereafter. We think there was no laches or abandonment.

The decree of the Court of Appeals is reversed and the cause is remanded to the Supreme Court of the District for further proceedings.Reversed.

Dissenting, MR. JUSTICE McREYNOLDS.