DEPOSITION.

Before the Commissioner of Patents, in the matter of Interference between the application of George T. Smith, for registration of trade-mark for whiskey, and the certificate of registry of Benjamin Barter, dated April 9, 1872.

Depositions of witnesses examined in behalf of George T. Smith, pursuant to the annexed notice, at the office of Hamilton Roberts, Esq., No. 140 Central Avenue, Columbus, Ohio, on Monday, August 12, 1872, and following days.

A. B., being duly sworn [or affirmed], doth depose and say, in answer to interrogatories proposed to him by James G. Fant, Esq., counsel for the said George T. Smith, as follows, to wit:

Question 1. What is your name, age, residence, and occupation? Answer 1. My name is A. B. I am twenty-seven years old. My residence is in Columbus, Ohio. I am a wholesale dealer in groceries.

Quest. 2. &c.

And in answer to cross-interrogatories proposed to him by Charles Cavil, Esq., counsel for Benjamin Barter, he saith:Cross-question 1. How long have you known the trade-mark in question?

Ans. 1. &c.

CERTIFICATE OF OFFICER.

[To follow depositions.]

A..

State of
County of
At

in said county, on the 12th day of August, 1872, and subsequent days, before me personally appeared the above-named [give full names of all the witnesses], and made oath that the foregoing depositions by them respectively subscribed contain the truth, the whole truth, and nothing but the truth. The said depositions were taken at the request of to be used upon the hearing of an interference between the claim of the said to the exclusive use of a trademark, before the Commissioner of Patents, on the [21st day of October, 1872].

The said

and that of

was duly notified, as appears by the proof

attached to the original notice, hereto annexed, and he attended by

SIR, I hereby appeal to you in person from the decision of the Examiner of Trade-marks, in the matter of interference between my application for registration of a trade-mark for spool-cotton and the certificate of registry issued to the respondents, in which priority of adoption was awarded to them, the said Wilson & Dunn. The following are assigned as reasons for appeal:

1st. The Examiner erred, in holding that to constitute adoption of a symbol as a trade-mark there must be an actual affixing to merchandise.

2d. He erred, in holding that the copyrighting of the said symbol was not, in legal effect, an actual adoption.

3d. He erred, in ruling out the deposition of James Johnson, because of alleged informalities.

4th. [Any other objections, in regular order.]

1 Or U. S. Commissioner, or Judge, or Notary Public, or other officer having authority to administer oaths for general purposes.

The officer, having appended to the depositions the notice under which they were taken, shall then seal up the testimony, and direct it to the Commissioner of Patents; and shall also place upon the package a certificate of the taking, sealing up, and addressing, and the date of sending, &c.

FORMS OF PLEADINGS, &c.

No. 1.-BEGINNINGS OF DECLARATION IN FEDERAL COURTS.1

CIRCUIT COURT OF THE UNITED STATES.

For the [Southern] District of [New York].

A. B., who is a citizen of the State of [Ohio], plaintiff in this suit, by Merwin Hallibow, Esq., his attorney, complains of C. D., who is a citizen of the State of [New York], defendant in this suit, of a plea of trespass on the case: For that whereas the said plaintiff, before and at the time of the committing of the grievances by the

1 Particular attention is invited to the following extracts from "An Act to further the Administration of Justice," approved June 1, 1872:

SEC. 4 provides, among other matters, that "all process issued from the courts of the United States shall bear teste from the day of such issue."

SEC. 5. That the practice, pleadings, and forms and modes of proceeding, in other than equity and admiralty causes in the Circuit and District Courts of the United States, shall conform, as near as may be, to the practice, pleadings, and forms and modes of proceeding existing at the time in like causes in the Courts of Record of the State within which such Circuit or District Courts are held, any rule of court to the contrary notwithstanding: Provided, however, That nothing herein contained shall alter the rules of evidence under the laws of the United States and as practised in the courts thereof."

"SEC. 6. That in common-law causes in the Circuit and District Courts of the United States the plaintiff shall be entitled to similar remedies, by attachment or other process against the property of the defendant, which are now provided for by the laws of the State in which such court is held, applicable to the courts of such State; and such Circuit or District Courts may, from time to time by general rules, adopt such State laws as may be in force in the State in relation to attachments and other process; and the party recovering judgment in such cause shall be entitled to similar remedies upon the same, by execution or otherwise, as are now provided by the laws of the State within which said Circuit or District Courts shall be held in like causes, or which shall be adopted by rules as aforesaid: Provided, That similar preliminary affidavits or proofs, and similar security, as required by such laws, shall be first furnished by the party seeking such attachment or other remedy."

said C. D., as hereinafter mentioned, did manufacture, vend, and sell [here state the cause of action in accordance with the suggestions contained in form No. 2].

BY AN ALIEN AGAINST A CITIZEN OF THE UNITED STATES.

P. Q., who is a subject of the Emperor [or citizen of the Republic] of and an alien, plaintiff, &c., complains of R. S., who is a citizen of the State of

&c.

BY A CITIZEN OF THE UNITED STATES AGAINST AN ALIEN.

R. S., who is a citizen of the State of

plaintiff, &c.,

complains of P. Q., who is a subject of the King of

BY A CORPORATE BODY.

The [giving the full corporate name] Company, citizens of the State of incorporated by the name aforesaid, by the said State, and having their principal place of business therein, plaintiffs, &c.

of our Lord one thousand eight hundred and seventy

E. F., being a citizen of the United States of America, and resident in the city of ,' plaintiff in this suit, by Merwin Hallibow,

1 Probably this averment is not necessary when the action is brought in a Federal court under the trade-mark Act of July 8, 1870. Citizenship, under that Act, is less a matter of importance than domicile, i.e., the commercial character, rather than the political status, is the point. But, to avoid all question as to jurisdiction, it is best to make the allegation so that it may appear whether the plaintiff sues as a citizen or as an alien. Where the subject-matter confers jurisdiction (as in a suit for infringement of a duly-registered trade-mark), an allegation of citizenship of a particular State is not required. However, abundant caution cannot harm.

his attorney, complains of G. H., defendant, of the said District, of a plea of trespass on the case: For that whereas he, the said plaintiff, for divers years before, and at the time of the committing of the grievances hereafter next mentioned, did manufacture, vend, and sell, and continue to manufacture, vend, and sell, and still does continue to manufacture, vend, and sell for profit, divers large numbers of a certain reaping-machine called the "Harvest Victor," which said machine the said plaintiff was then, and still is, used and accustomed to sell, each machine bearing a representation of "Time," with a scythe, and the words "Harvest Victor" in raised characters, as his trade-mark therefor. And the said plaintiff being then domiciled within the United States, did cause to be recorded, in the Patent Office of the United States, a statement of his name, residence, and place of business; the class of merchandise and the particular description of goods comprised in such class, by which the aforementioned trade-mark had been appropriated as aforesaid; a description of the said trade-mark itself, with fac-similes thereof, and the mode in which it has been applied and used; and the length of time during which the said trade-mark had been used; and having made a payment of a fee of twenty-five dollars, and complied with the regulations prescribed in such case by the Commissioner of Patents; and having filed a declaration under the oath of this plaintiff, to the effect that he then had a right to the use of the said trademark, and that no other person, firm, or corporation, had the right to such use, either in the identical form or having such near resemblance thereto as might be calculated to deceive, and that the description and fac-similes presented by him for record truly represented the trade-mark sought to be protected, therefore he obtained a certificate of registry of said trade-mark under the seal of the said Patent Office, certified by the Commissioner of Patents, bearing date the 187, in due form of law, as by reference to said certificate and a schedule thereto annexed will fully appear.

day of

And the said plaintiff further says that before and at the time of committing the grievances hereinafter next mentioned, he had gained and acquired great fame and reputation with the public on account of the excellent properties of the said reaping-machine, so

1 Whether a full compliance with all the requirements of the statute in regard to registration need to be alleged has not been decided by any court. Perhaps it would be sufficient to simply allege the fact of due registration, evidenced by the certificate of the Patent Office, as regularity would be presumed. At any rate, the exemplification of the record would demonstrate the matter.