
    132 F. (2) 129
    Island Road Bottling Co. v. Drink-Mor Beverage Co.
    (No. 4789)
    
      November 5, 1942
    
      C. W. Rivise for appellant.
    
      Charles R. Allen for appellee.
    Before Garrett, Presiding- Judge, and Bland, Hateieed, Lenroot, and Jackson, Associate Judge
   Per Cxjriam :

The Drink-Mor Beverage Company, named as appellee in this pró-ceeding, has filed a motion to correct diminution of the record, setting forth that a certain Trade-Mark Registration No. 347,478 should be included in the record certified to this Court by the Commissioner of Patents.

It appears that appellant is an applicant for a Trade-Mark Registration of the notation “MAMMY’S” used upon non-alcoholic beverages and syrups, etc., used in making the same.

The Drink-Mor Beverage Company filed notice of opposition to such registration alleging that it is the owner of the mark “MA’S” used upon similar goods; that the marks of the parties are confusingly similar and that its use of the mark “MA’S” antedated the use by appellant of its mark.

Testimony was taken and upon final hearing the Examiner of Interferences held that the opposer’s notice of opposition should be dismissed for failure to establish damage to itself by the use by appellant of its mark. The examiner further held that appellant was entitled to the registration of its mark.

Upon appeal, the Commissioner of Patents affirmed the decision of the examiner holding that opposer’s notice of opposition should be dismissed, but reversed his decision holding that appellant was entitled to the registration applied for. In his decision the Commissioner stated “* * * it is adjudged ex parte, that applicant is not entitled to the registration for which it has made application.”

Appellant has taken an appeal to this Court from said ex parte decision. The Drink-Mor Beverage Company took no- appeal from the holding that its notice of opposition should be dismissed.

Upon the record before us the Drink-Mor Beverage Company is not a party to this appeal other than in form. The controversy presented to us is solely between appellant and the Commissioner of Patents representing the public, and it should be treated in all respects as an ex parte case with the Solicitor for the United States Patent Office appearing to represent the Commissioner of Patents.

It follows from the foregoing that the Drink-Mor Beverage Company is not entitled to make the motion here before us, or appear in any other respect as a party to this appeal.-

Therefore the motion for diminution of the record is denied.  