old in use and not indicative of origin; and another manufacturer of a similar article made in the same shape, but with a different letter embossed thereon, and sold under the same name, is not chargeable with unfair competition, where the boxes in which the confection is retailed, while of the same size and shape, are dissimilar in coloring and lettering, so that ordinary purchasers would not be deceived as to the origin of the goods. [Ed. Note.-For cases in point, see vol. 46, Cent. Dig. Trade-Marks and Trade-Names, § 81. Unfair competition, see notes to Scheuer v. Muller, 20 C. C. A. 165; Lare v. Harper, 30 C. C. A. 376.] Appeal from the Circuit Court of the United States for the District of New Jersey. See 129 Fed. 649. Stephen J. Cox, for appellant. Louis C. Raegener, for appellees. Before ACHESON, DALLAS, and GRAY, Circuit Judges. DALLAS, Circuit Judge. The assignment of errors in this case comprises nine specifications, but, as is said in the appellant's brief, "they, however, may all be condensed into the statement that the court erred in not holding that a case of unfair competition had been made out." In Bickmore Gall Cure Co. v. Karns (decided at this term) 134 Fed. 833, we said: "Undoubtedly, where two persons are engaged in selling like goods, neither of them has, or can acquire, the exclusive privilege to aptly designate and describe them, or to attractively present them for sale, with appropriate directions for their use; but neither of them has the right to do any of these things in such manner as insidiously to mislead purchasers into the belief that his wares are those of his competitor." This proposition is applicable to the present case, but the facts to which it is now to be applied are very different from those which were presented in the former one. The appellant makes a confection composed of licorice and gum, flavored with mint, which he calls a "licorice pastille." He forms it in diamond shape, and marks it with the embossed letters "H-H," the initial letters of his name. The appellees manufacture a similar article, of the same size and shape, which they mark with the embossed letter "W," the initial letter of their firm name, and this article they likewise denominate "licorice pastille." In doing this they invade no right of the appellant. The latter has no monopoly of the manufacture or sale of a comfit of licorice and gum, nor could he acquire the exclusive privilege to make it of a particular size or shape. These matters are characteristic of the article itself, and no dealer is entitled to impose restrictions upon his competitors with respect to them. They do not necessarily or naturally point to the source of origin of the goods, and if, by asserting appropriation for that purpose of an especially attractive size and shape, a manufacturer could obtain for himself alone the advantage to result from the superior attractiveness so attained, he might readily, not merely protect himself against unfair competition, but relieve himself from any competition whatever. It is clear, too, that the fact that there is a raised device on the product of each party affords no ground for complaint by the appellant. If his symbol had been copied, or even simulated, by the appellees, a different case would have been presented; but the letter "W" on the appellees' pastilles is quite distinctly formed, and even upon the most casual observation, could not be mistaken for the letters "H-H" upon those of the appellant. So far, therefore, from having a misleading effect, the tendency of the appellees' device is to prevent misconception. The name "Licorice Pastilles," while it accurately denotes the things made, does not at all indicate by whom they are made. Licorice may be called "licorice" by any one, and "pastille"-a well-known word, though borrowed from the French-is a peculiarly appropriate designation for such an article as is here in question; and that it had been actually applied to the same character of goods prior to the appellant's application of it to his licorice confection, the opinion of the court below sufficiently shows. Consequently, the two words as joined in the term "licorice pastilles" constitute a descriptive appellation, which all persons may use, and which is not susceptible of exclusive appropriation by any person. The small boxes in which the pastilles of the appellees are sold to consumers are of the same size and shape as those of the appellant, but such boxes are, and long have been, commonly used for packing similar wares, and even if the appellant had been the first to use them for packing licorice pastilles, he would not thereby have obtained a monopoly of their use for that purpose. The two boxes are strikingly different in their color and markings, and while, of course, purchasers desiring to buy pastilles of licorice, without caring by whom they had been made, would accept indifferently either those of Heide or of Wallace, yet it is not at all likely that a purchaser desiring to buy Heide's and not Wallace's, would be led, by any similarity of the respective packages, to accept the latter supposing them to be the former. Van Camp Packing Co. v. Cruikshanks Bros. Co., 90 Fed. 814, 33 C. C. A. 280. As was said by the learned judge below, the box of the appellant "is in mixed red and blue, set off with gilt, with the diamond trade-mark prominently displayed; while the defendant's package is predominantly yellow, with an entirely different style of letter in red, shaded with white on a black background, with their name written below. There is nothing whatever to suggest an attempt to catch the unwary purchaser and inveigle him into taking the one when he was seeking the other, nor could the most careless be deceived, except as he was in reality unconcerned as to which he got." The decree of the Circuit Court is affirmed. UNITED STATES v. HAHN. (Circuit Court of Appeals, Second Circuit. December 8, 1904.) No. 38. CUSTOMS DUTIES-CLASSIFICATION-HALF PEARLS. Half pearls, consisting of the better part of the true pearl, from which blemishes or flaws have been removed by sawing or splitting, and which are not adapted for stringing, but are chiefly used for jewelry settings, are dutiable by similitude, under paragraph 436, Tariff Act July 24, 1897, c. 11, § 1, Schedule N, 30 Stat. 192 [U. S. Comp. St. 1901, p. 1676], covering pearls in their natural state, not strung or set. Appeal from the Circuit Court of the United States for the Southern District of New York. For decision below, see 131 Fed. 1000. Chas. D. Baker, for appellant. Comstock & Washburn, for appellee. Before WALLACE, LACOMBE, and TOWNSEND, Circuit Judges. PER CURIAM. Affirmed in open court. UNITED STATES v. MILLER, SLOAN & WRIGHT. (Circuit Court of Appeals, Second Circuit. December 7, 1904.) No. 69. 1. CUSTOMS DUTIES-CLASSIFICATION-PRINTING PAPER-HANDMADE Paper. Held, that handmade printing paper, suitable for books and newspapers, is more specifically provided for under paragraph 396, Tariff Act July 24, 1897, c. 11, § 1, Schedule M, 30 Stat. 187 [U. S. Comp. St. 1901, p. 1671], as "printing paper * suitable for books and newspapers," than paper," under paragraph 401 of said act, 30 Stat. as "handmade 189 [U. S. Comp. St. 1901, p. 1672]. Appeal from the Circuit Court of the United States for the Southern District of New York. For decision below, see 128 Fed. 469. Chas. D. Baker, for appellant. Albert Comstock, for appellee. Before WALLACE, LACOMBE, and TOWNSEND, Circuit Judges. PER CURIAM. Affirmed in open court. UNITED STATES v. McCONNAUGHEY et al. (Circuit Court of Appeals, Sixth Circuit. March 8, 1905.) No. 1,365. RES JUDICATA-ACTION BY UNITED STATES. A judgment against the United States in an action brought by the administrator of a deceased volunteer soldier, who died while an inmate of a national soldiers' home, to recover the amount of certain pension money which had been paid to the treasurer of the home on account of such soldier, which judgment was paid by the government, renders all questions as to its right to such pension money res judicata, and it cannot maintain a second action against the administrator to recover the money back. In Error to the Circuit Court of the United States for the Southern District of Ohio. Sherman T. McPherson, U. S. Atty., and Thomas H. Darby, Asst. U. S. Atty. Gottschall & Limbert, for defendant William S. McConnaughey. U. S. Martin and C. H. Kumler, for defendant State of Ohio. Before LURTON and SEVERENS, Circuit Judges. PER CURIAM. The plea of res adjudicata is good. The record of the former judgment shows that the same question was involved in the suit of McConnaughey, administrator of Hoffman, against the United States, which was attempted to be relitigated in this case. That judgment determined that the plaintiff in the former suit was, as the personal representative of Johann Hoffman, entitled to receive and hold the remainder of unexpended pension money paid to or on account of Hoffman. Having recovered the same from the United States, they are not now entitled to have same paid back again by reason of any new right or title asserted herein. Judgment affirmed. WEST v. ROBERTS et al. (Circuit Court of Appeals, Fifth Circuit. February 15, 1905.) No. 1,366. 1. TRIAL-EFFECT OF MOTIONS BY BOTH PARTIES FOR DIRECTION OF VERDICT. Where both parties move for direction of a verdict, it is an affirmance on the part of each that there is no disputed question of fact which could operate to deflect or control the questions of law. [Ed. Note.-For cases in point, see vol. 46, Cent. Dig. Trial, § 400.] 2. PUBLIC LANDS-LOUISIANA STATE SWAMP LANDS-PRE-EMPTION RIGHTS. Pre-emption rights cannot be acquired, under Act La. No. 21, p. 31, of 1886, in lands which have been granted to one of the levee boards of the state. In Error to the Circuit Court of the United States for the Western District of Louisiana. J. D. Wilkinson, for plaintiff in error. E. H. Randolph, E. W. Sutherlin, W. P. Hall, and A. J. Murff, for defendants in error. Before PARDEE, MCCORMICK, and SHELBY, Circuit Judges. PER CURIAM. On the trial in the lower court each party requested the court to instruct the jury to return a verdict in his favor, and thereby each affirmed there was no disputed question of fact which could operate to deflect or control the question of law. See Beuttell v. Magone, 157 U. S. 157, 15 Sup. Ct. 566, 39 L. Ed. 654. The trial judge gave the peremptory instruction in favor of the defendant, and therein followed McDade v. The Bossier Levee Board, 109 La. 627, 33 South. 628, and Hall v. Levee Board, 111 La. 913, 35 South. 976. The ruling of the trial judge was correct, and the judgment of the Circuit Court is affirmed. NATIONAL TUBE CO. v. SPANG et al. (Circuit Court of Appeals, Third Circuit. Feb. 1, 1905.) No. 7. PATENTS-INVENTION-MANUFACTURE OF TUBING. The Patterson patent, No. 581,251, for the manufacture of tubing, covering the method by charging the plates into the furnace from the rear and withdrawing them from the front by means of tongs or other suitable device, which also draws them through the welding bell, is void for lack of patentable invention. The advantages of back charging in the manufacture of such pipe, as was practiced in the making of lap-weld pipe, were previously known, and it was practiced by at least one method. The method of the patent was merely a part of the steady evolution and development of the art in mechanical means, not involving invention. Appeal from the Circuit Court of the United States for the Western District of Pennsylvania. For opinion below, see 125 Fed. 22. James I. Kay and John R. Bennett, for appellant. Wm. L. Pierce and Frederic H. Betts, for appellees. Before ACHESON, DALLAS, and GRAY, Circuit Judges. GRAY, Circuit Judge. This suit was brought by the appellant, the complainant below, for alleged infringement of letters patent No. 581,251, granted April 20, 1897, to Peter Patterson, for an improvement in the manufacture of tubing, and by him assigned to the appellant, the complainant below. The state of the art to which the alleged invention applies, is thus described in the specifications of the patent in suit: "My invention relates to the manufacture of butt-weld pipe or tubing from flat metal plates or strips, its object being to overcome certain existing defects and difficulties in this art and to facilitate the manufacture of the tubing, both as to the heating of the plates from which the tubing is formed |