CITE:  23 F.2d 772
CMON:  December 1927
PLAIN: Blood (In re)
DEFND: United States Patent and Trademark Office
COURT: United States Court of Appeals of District of Columbia
DATE:  December 5, 1927
Appeal from the Commissioner of Patents. AFFIRMED.

  One cannot have a design patent and copyright for the same design.

JUDGE: MARTIN, Chief Justice
Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices. 


This appeal challenges concurrent decisions of the Patent Office refusing
to allow the registration of appellant's design for a hosiery ticket. 

The claim is in the usual form, as follows: "The ornamental design for a
hosiery ticket as shown." An illustration of the design is contained in
the record, and discloses a figure with the outline of an elongated hexagon,
or of a rectangle with the four corners cut off by deep cuts. The interior
of the figure is plain, having no reading matter nor ornamentation within

The Examiner rejected the claim on the ground that the applicant had
previously registered the same design as a label, and therefore was not
entitled to register it also as a design patent. The Examiner noted that the
label design contained certain words inscribed within its outlines, which
were omitted from the present design, but that otherwise it disclosed all of
the features of the latter. This omission was held by the examiner to be
immaterial. The applicant appealed to the Board of Examiners in Chief, who
affirmed the decision of the Examiner. This decision was in turn affirmed
by the Commissioner of Patents. 

We think that these decisions were right. There is no difference in
contemplation of law between the label design and that involved in this
proceeding; the design in each case is the same. The design is not entitled
to double registration, once as a label design, and again as a design for a
hosiery ticket. Such a course would result for all practical purposes in an
extension of the design monopoly. The applicant was entitled to apply for a
patent for the design as a hosiery label, or he might complete the label, and
register the design, so completed, as a label. He could not do both. He
elected to pursue the latter course, and has obtained the protection thereby
assured to him, and he is bound by that election. De Jonge & Co. v.
Breuker & Kessler (C.C.) 182 F. 150. 

The decision of the Commissioner of Patents is affirmed.