(269 F.) The present consideration is on motion of appellants that the decree be reversed, for the reason that, since the entry of the final decree and the taking of this appeal, Congress, by an act approved June 5, 1920 (U. S. Stats. 1919 and 1920 [41 Stat.] p. 988), known as the Merchant Marine Act, has expressly authorized the United States Shipping Board, in its discretion and under certain limitations therein expressed, to sell all vessels acquired by the United States during the war, including the vessels here in question. The act not only vests the power in the board to do the thing enjoined, but defines how it shall be done. Whether, therefore, the board exceeded its power, or was threatening to do so, when the 'decree appealed from was made, is now a moot question. The motion to reverse the decree must be sustained. Public Utility Commissioners v. Compania General, 249 U. S. 425, 39 Sup. Ct. 332, 63 L. Ed. 687. The decree is reversed, without costs, and the cause is remanded, with directions to dismiss the bill, without costs to either party. Reversed and remanded. In re LEES. Submitted November 11, 1920. (Court of Appeals of District of Columbia. Decided December 6, 1920.) No. 1340. Patents 136-Reliance on solicitor does not authorize reissue with broad ened claims. An affidavit that applicant was unskilled in patent matters and relied on his solicitor, and only recently discovered that the claims were not as broad as the invention, does not show special circumstances excusing the delay, which alone authorized a reissue of the patent with broadened claims more than two years after the original issue. Appeal from the Commissioner of Patents. In the matter of the application of Ernest J. Lees for reissue of a patent with broadened claims. Application denied, and applicant appeals. Affirmed. C. B. Mueller, of Cleveland, Ohio, for appellant. - T. A. Hostetler, of Washington, D. C., for Commissioner of Patents. ROBB, Associate Justice. Appeal from a decision of the Patent Office refusing to reissue appellant's patent with broadened claims; the application having been filed about two years and five months after the granting of the patent. In the affidavit accompanying the application for reissue, appellant states that he was unskilled in patent matters, relied upon his solicitor, and only recently discovered that his claims were not as broad as his invention. Since it is settled law that a patent will not be reissued after the lapse of two years, for the purpose of enlarging For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes its claims, unless special circumstances are shown to excuse the delay (Miller v. Brass Co., 104 U. S. 350, 26 L. Ed. 783; Topliff v. Topliff, 145 U. S. 156, 12 Sup. Ct. 825, 36 L. Ed. 658; In re Starkey, 21 App. D. C. 519; In re Schneider, 49 App. D. C. 204, 262 Fed. 718), it cannot be said that there was any abuse of discretion on the part of the Patent Office in ruling that such special circumstances have not been shown here. It follows that the decision must be affirmed. Affirmed. In re WILLIAM SCHLUDERBERG & SON. (Court of Appeals of District of Columbia. Submitted November 17, 1920. Decided December 6, 1920.) No. 1361. Trade-marks and trade-names 43-Registration of trade-mark refused because of existing similar mark for similar goods. An application to register the word "Highland" as a trade-mark for ham, corned beef, and cooked shoulders was properly refused, where another had registered as a trade-mark in connection with the sale of canned meats the representation of a Highlander and the words “Highland Brand," since it is obvious that confusion would be likely to result. Appeal from a Decision of the Commissioner of Patents. In the matter of the application of William Schluderberg & Son for registration of a trade-mark. From a decision of the Patent Office, refusing registration, applicant appeals. Affirmed. John A. Saul, of Washington, D. C., for appellant. T. A. Hostetler, of Washington, D. C., for Commissioner of Pat ents. ROBB, Associate Justice. Appeal from a decision of the Patent Office refusing to register the word "Highland" as a trade-mark for ham, corned beef, and cooked shoulders. It appearing that Matthews & Co. have registered and long used, as a trade-mark in connection with the sale of canned meats, the representation of a Highlander and the words "Highland Brand," the decision must be affirmed, for it is obvious that confusion would be likely to result, should registration be accorded appellant's mark. Affirmed. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes NATIONAL LEAGUE, ETC. V. FEDERAL BASEBALL CLUB (269 F.) NATIONAL LEAGUE OF PROFESSIONAL BASEBALL CLUBS et al. v. FEDERAL BASEBALL CLUB OF BALTIMORE, Inc. (Court of Appeals of District of Columbia. Submitted October 12, 1920. Decided December 6, 1920. On Motion for Rehearing, January 3, 1921.) No. 3368. 1. Monopolies 12 (2)-"Trade" and "commerce" involve transfer of goods, persons, or intelligence. Within the Sherman Anti-Trust Act (Comp. St. §§ 8820-8823, 88278830), making unlawful restraint of trade or commerce among the several states, "trade," which is defined as the exchange of commodities or the buying and selling of commodities, and "commerce," which means exchange of goods both trade and commerce involve the transfer of something, whether it be persons, commodities, or intelligence, from one place or person to another. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Commerce; Trade.] 2. Monopolies 12 (2)-Baseball club is not engaged in "trade" or "commerce." The business of giving exhibitions of baseball games for profit is not trade or commerce, within the meaning of the Sherman Anti-Trust Act (Comp. St. §§ 8820-8823, 8827-8830), and a corporation formed for the purpose of giving such exhibitions is not engaged in such trade or commerce, though as an incident thereto it transports the players and their paraphernalia from one state to another. 3. Monopolies 12 (1)-Persons not engaged in commerce may be guilty of interfering with commerce. A baseball club, even though not engaged in interstate commerce, may be guilty of violating the Sherman Anti-Trust Act (Comp. St. §§ 8820-8823, 8827-8830), if it illegally interferes with the interstate features of the business of another club. 4. Monopolies 12 (2)-Sherman Act prohibits only direct restraints of interstate commerce. The Sherman Anti-Trust Act (Comp. St. §§ 8820-8823, 8827-8830) does not apply, unless the effect of the act complained of on interstate commerce is direct, not merely indirect or incidental. 5. Monopolies 12 (1) -Reserve clause in baseball players' contracts is not direct restraint of commerce. The reserve clause in baseball players' contracts under the National Agreement was intended to protect the rights of clubs operating under that agreement to retain the services of sufficient players for their purposes, and its effect on the interstate commerce of a club outside the National Agreement was only indirect and incidental, so that it does not amount to a violation of the Sherman Anti-Trust Act (Comp. St. §§ 8820-8823, 8827-8830). On Motion for Rehearing. 6. Appeal and error 1176 (1) -Defendants in error on request given final judgment against it, instead of new trial, to permit further appeal without delay. After a case has been reversed and remanded for new trial, a petition by defendant in error, plaintiff in the suit, stating it does not desire to present new testimony, but is willing to stand on the record made, and prefers a decision directing judgment against it, so that it may appeal to the Supreme Court without further delay, should be granted. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes Appeal from the Supreme Court of the District of Columbia. Action by the Federal Baseball Club of Baltimore, Incorporated, against the National League of Professional Baseball Clubs and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded on rehearing, with directions to enter judgment for defend ants. B. S. Minor, of Washington, D. C., and George Wharton Pepper, of Philadelphia, Pa. (Samuel M. Clement, Jr., of Philadelphia, Pa., on the brief), for appellants. Chas. A. Douglas and J. V. Morgan, both of Washington, D. C., and Wm. L. Marbury, Wm. L. Rawls, and L. Edwin Goldman, all of Baltimore, Md. (Charles S. Douglas and Hugh H. Obear, both of Washington, D. C., on the brief), for appellee. SMYTH, Chief Justice. This is an action for damages under the Sherman Anti-Trust Act (26 Stat. 209 [Comp. St. §§ 8820-8823, 8827-8830]). The plaintiff, who is appellee here, was awarded a verdict for $80,000, which was trebled under section 7 of the act, and a judgment for $240,000, with costs and attorney's fees, entered against the defendants, who bring the case before us for review. Appellee is a corporation organized in October, 1913, in Baltimore, for the purpose of giving exhibitions of baseball. Its organization was brought about by the Federal League of Professional Baseball Clubs, which was incorporated in March, 1913, and consisted of eight clubs, of which the appellee was one. One club was located in each of the following cities: Brooklyn, Pittsburgh, Buffalo, Baltimore, St. Louis, Kansas City, Indianapolis, and Chicago. The league issued to each club a franchise, that authorized it to conduct competitive baseball games in the league. The league continued in existence, with more or less success, until December, 1915, when an agreement, called the "Peace Agreement," was entered into between it, the National League, and the American League of Professional Baseball Clubs. This agreement resulted in the dissolution of the Federal League and all its constituent clubs, save the appellee. The latter refused to become a party to the agreement; but, as there was none of its league clubs left after the dissolution with which to compete, it ceased to operate. Appellee, asserting that the disbandment of the league and the consequent injury to it were due to acts of the appellants done in violation of sections 1 and 2 of the Sherman Act, instituted this action. The appellants, defendants below, are: The National League of Professional Baseball Clubs, referred to herein as the National League, an unincorporated association, and its eight incorporated constituent clubs, one of which was established in each of the following cities: New York City, Brooklyn, Philadelphia, Boston, Chicago, St. Louis, Pittsburgh, and Cincinnati. Also the American League of Professional Baseball Clubs, spoken of hereafter as the American League, an unincorporated association, and, like the National League, having eight constituent clubs, one located in each of these cities: New York City, Boston, Philadelphia, Washington, D. C., Chicago, St. Louis, Detroit, (269 F.) and Cleveland. Also John K. Tener, president of the National League; Bancroft A. Johnson, president of the American League; and August Herrmann, chairman of the National Commission, hereafter described. The cities having National League clubs form the baseball circuit for that league, and those having American League clubs the baseball circuit for that league. The National League and the American League are generally denominated major leagues. With them are united, by what is called the "National Agreement," the National Association of Professional Baseball Leagues, which consists of a large number of minor leagues. of professional baseball, similar in structure to the major leagues, but the players have not, in general, attained as high a degree of skill as that which characterizes major league players. The leagues of the association constitute training fields from which the major leagues draw new players. While the association covers the greater part of the field of professional baseball below the major league grades, yet there are outside of it some professional, many semiprofessional, and all college and amateur organizations. Each club of the major leagues obtained a ball ground and equipped it with stands and seats for the accommodation of the public in its home city. The clubs were organized for profit, but not the leagues. The function of each league was to regulate contests between teams representing the several clubs in the league, which compete annually for championship. Baseballs were purchased by each league and sold to its clubs at cost, and each league had a contract with a telegraph company for service, and had an income sufficient only to meet necessary expenses. Such unspent funds as it might have were not held for distribution, but as a reserve to meet liabilities. The National Commission, already referred to, is an unincorporated body composed of the presidents of the two leagues and a third person, selected by them. It is an administrative body, and is not a profitmaking concern. The club which wins the championship pennant in any year in one major league competes for the world's championship in that year with the winner of the pennant in the other. It is one of the functions of the National Commission to regulate these contests. A schedule for each league is arranged by its president prior to the beginning of the playing season. During the playing season teams travel by train from place to place, taking with them their uniforms. and other paraphernalia of the game. The National Commission exists by virtue of the National Agreement, heretofore referred to. It is claimed that this agreement has produced the system which constitutes the violation of the Sherman Act complained of. By this agreement players, before they could secure employment in any club operating under it, were required to enter into contracts which, it is alleged, gave the appellants control over practically all available players of sufficient skill to serve in a major league club, and thus the Federal League was unable to secure players capable of producing such exhibitions of baseball as the public demanded; and, in consequence of this inability, disaster came upon the Federal League and its constituent clubs, including the appellee. |