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 HISTORY: Appeal from the Commissioner of Patents. AFFIRMED. SUMMARY: 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. DECISION: 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 it. 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.