The morning news. [volume] (Savannah, Ga.) 1887-1900, 1893-12-29
TILLMAN's WHISKY LABEL.
The Appeal Brief of the Commissioner
of Patenta.

washington, Dec. 28.-The appeal brief
OF the commissioner of patents in the
case OF the application of the state of
South Carolina for the use of the word
palmetto" as trade mark for dispen-
sary whisky is ready to be filed. The
document covers forty printed pages, and
Is an able presentation of the govern
ments side of the case. The supreme
court of the District of Columbia issued a
mandamus, commanding the commissioner
OF patents TO issue the trade mark petit
TONED for by the state of South Carolina.
or In case he was in default to appear be-
lore the count and show cause why he
refused to do so.
The appeal sets out three causes OF
error. Two allege error by the supreme
court OF the district in taking Jurisdiction
OF the case, because Q) the. duties of the
commissioner Of patents in the matter of
tne application for the registration of the
alleged trade mark are discretionary. and
not Ministerial; and (2) because the COM
missioner had decided the presumptive
laWfulness of the REALTORS claim ad-
versely, without fraud or abuse of his au-
thority.
The court is also held to err in finding
from the commissioners answer to the
petition as fact that the relator was
lawfully engaged in foreign trade in the
sale of liquor.
FALSE THEORY.
After an exhaustive discussion of the
case, the brief continues as follows: 1.-THE
theory that there is no power under the
traoe mark law to prevent an applicant
from swearing his application through to
registration over every obstacle of owner
ship, or validity of the alleged trade mark.
or It's lawful use, seems to be so unjust to
the public as to be inadmissible The
commissioner cannot believe it to have
been the intention of congress, nor so
expressed in the letter or spirit of the
trade mark law, that certificates of
registration should be issued in de-
nance of notorious facts, proving the
applicant to be acting not within
the scope OF his powers, or proving him
not TO be the owner of the trade mark
The commissioner cannot believe that
the law requires hiuf to issue void certifi-
Gates of registration in order to have the
courts declare them void pro forma The
allowance of certificate under such cir
cumstances seems to be wholly irreconcil-
able with the mandatory requirements of
the trade mark law.
HIS INTERPRETATION OF THE LAW.
Gas the commissioner reads the statutes
creating his Office and defining his duties
as to trade marks, 1t seems to him that
these positive words require him to de-
eide the presumptive lawfulness Of the
claim of the state of South Carolina to
the alleged trade mark, Palmetto It
is strange theory and construction of
the law, he says, to require him to issue
a certificate establishing a prima facie
ownership of a trade mark and guarantee
ing protection of the mark upon state of
facts, which, when made apparent to
court of law or equity, would
compel the court to pronounce
the certificate utterly void. 1t is
said that the law never exacts vain things
to be done. but to command the commits
stoner of patents to issue a worthless and
void certificate in this case would be
worse than vain. 1t would be to direct
that Benjamin r. Iillman should be
armed with warrant, in the name and
under the seal of the United States, to go
into all the federal courts in the land and
hunt down and criminally prosecute his
fellow citizens with oppressive, vexatious
litigation, in order to carry out a dispen-
sary law of the state Of South Carolina"