
    BLUTHENTHAL v. BIGBIE.
    Trademarks; Partnership; Sales.
    1. In a trademark interference proceeding, the party last to make application has the burden of showing prior adoption and use of the trademark.
    
      2. If a partner acquires an interest in a trademark through its use during hia membership in the firm, it ceases upon his withdrawal, in the absence of an agreement to the contrary, and remains with the partner who continues to conduct the business. (Following Giles Remedy Go. v. Giles, 26 App. D. C. 375.)
    3. A sale by the surviving member of a partnership, of the partnership stock in trade, good will, a formula for making whisky, and stencils used for marking barrels and kegs with the trademark name of the brand of whisky made by the firm, carries with it the right to use the trademark.
    No. 421.
    Patent Appeals.
    Submitted May 22, 1907.
    Decided June 4, 1907.
    Hearing on an appeal from a decision of tbe Commissioner of Patents in a trademark interference proceeding.
    
      Affirmed.
    
    The facts are stated in the opinion.
    
      Mr. Joseph L. Atkins for the appellants.
    
      Mr. Edward T. Eenwick and Mr. 8. V. Kemp for the appellees.
   Mr. Chief Justice Shepard

delivered the opinion of the Court:

This is an interference proceeding involving the right to the registration of the words “Old Velvet” as a trademark used in the manufacture and sale of whisky. Appellants, Bluthenthal and Bickart, filed April 4, and appellees, Bigbie Brothers & Company, April 19, 1905. J. & G. Butler Company was also a party, but took no appeal from the final decision of the Commissioner.

The Examiner of Interferences decided in favor of Bigbie Brothers & Company, as against the other contestants, and his decision was affirmed by the Commissioner. There is no occasion to review the evidence, as that has been done with care and at length, in both of the decisions referred to. Upon examination of the entire evidence, we are convinced of the soundness of the Commissioner’s conclusions. As the appellees, being the last to make application, had the burden of showing prior adoption and use of the trademark, we deem it important only to make a brief statement of the facts which we think their evidence clearly establishes. It appears that one Joseph Lawson was engaged in the sale of liquor in Lynchburg, Virginia, prior to 1861, and that he resumed said business in 1865 or 1866. During the time between then and February 19, 1887, the exact date of which is unimportant, he made or compounded an article of rye whisky which he labeled and sold as “Old Velvet.” He went into partnership with one Kinnear, under the firm name of Lawson & Kinnear. Kinnear retired and was succeeded by the son of Lawson, and the firm name became Joseph Lawson & Son. The son retired or died before February 19, 1887. The several partnerships sold Old Velvet Whisky at retail and wholesale, and the brand seems to have been well known. They used a stencil with which the brand was placed on the heads of barrels and kegs. On February 19, 1887, Joseph Lawson as surviving partner sold the entire stock of liquors to Bigbie Brothers & Company, and leased the premises, which belonged to him alone, to them. He transferred the good will, and turned over to them not only the stock on hand, but also the stencils, including Old Velvet, and the formula for making it. The purchasers continued the business as successors to Joseph Lawson & Son. They used the stencil on barrels and kegs, and also procured a large number of labels containing the words “Old Velvet,” which they applied to bottles containing whisky made after the formula therefor. Whisky, in barrels and bottles so branded and labeled, was sold continuously thereafter, and shipped to purchasers in Virginia and other States. “Old Velvet” was intended to be used as a trademark, and the brand was well known to customers. The earliest date of adoption and use claimed by appellants is February 18, 1888, Whether the. date so early is established by the evidence it is immaterial to consider, as the one claimed is later than that established by the appellees.

The testimony rather indicates that the trademark was the separate property of Lawson. But if the first retiring partner had an interest in it also, through its use during his membership on the firm, it ceased upon his withdrawal, and remained with Lawson, who continued to conduct the business at the same place and in the same way. Giles Remedy Co. v. Giles, 26 App. D. C. 375, 382. At any rate, the retiring partner does not appear to have asserted any interest thereafter. Assuming, also, that Joseph Lawson’s son acquired an interest in the use of the trademark upon his accession to the partnership, whatever interest he may have taken passed by the sale and transfer made by the surviving partner to the appellees.

In our opinion the decision was right, and it will therefore be affirmed. This decision will be certified to the Commissioner of Patents as required by the law.

Affirmed.  