amount claimed, in favor of the plaintiff and decided by the Supreme Court of the District against the defendant. Discussion. The exact point at issue here was decided adversely to the defendant in the case of United States v. Harry Whyel and George Whyel, 19 F.(2d) 260, at No. 1227, in equity, by Judge Thomson, of this district. Judge Thomson held that where, as in this case, the assessment of tax was made prior to the effective date of the Revenue Act of 1924 (43 Stat. 253), the act of 1924 did not apply, and that the right of distraint or proceeding for the collection of tax was barred by the period of limitation in existence prior to the passage of the act of 1924. We rest our ruling in this case upon the opinion of Judge Thomson in the case just quoted. In addition, it may be noted that the same conclusion is supported by the District Court of the Northern District of Ohio in the case of United States v. National Refining Company of Ohio, decided December 15, 1926,1 and United States v. Godfrey S. Cabot, 1 UNITED STATES, Plaintiff, v. NATIONAL REFINING COMPANY OF OHIO, Defendant. of Columbia on June 15, 1926, cited in 5 Am. Fed. Tax Rep. 6172; Appeal of National Refining Co. of Ohio (Board of Tax Appeals, Decision No. 94) 1 B. T. A. 236. In this connection, it may be noted that in the case of United States v. Robert L. Crook and Daniel H. Christman (C. C. A.) 18 F. (2d) 449, it was decided that, where the assessment of taxes for a year prior to 1924 was made after the passage of the Revenue Act of 1924, and within the time prescribed by section 277 (2) of that act being 26 USCA § 1057 (Comp. St. § 6336%zz [4]), the statute of limitations applicable is the Revenue Act of 1924. In the instant case, however, the assessment was made long before the effective date of the act of 1924. We think, therefore, that the instant case must be held not to be within the terms of the act of 1924, because that act provides in section 278 (e), being 26 USCA § 1062 (Comp. St. § 6336%zz [5]): “This section [containing the six-year period of limitations] shall not (2) affect any assessment made before the enactment of this act." Let an order for judgment be entered as herein directed. UNITED STATES, Plaintiff, v. CUDAHY OIL considered supporting opinion, are exhibited COMPANY, Defendant. (Nos. 13303, 13304.) with defendant's answer, and a copy annexed to plaintiff's brief. Upon careful consideration, I am of opinion that its findings of fact are not District Court, N. D. Ohio, E. D. December 15, only not overthrown by the evidence, but are At Law. 1926. fully supported by the evidence. Likewise no error is perceived in its conclusions of law, nor in the reasons advanced in support of such conclusions. I am content to adopt such findings of fact and conclusions of law, and to dispose of these cases upon the reasoning of the board, without further or additional opinion. No reason or necessity is perceived for again going over the same ground, as admittedly all the ev idence now presented was heard and considered by the board, and no new considerations of fact or law are now brought to my attention. Judgment will be rendered for the defendants. Requests have been made by both parties for special findings of fact upon the issues raised by the pleadings. The request is granted. Counsel will prepare and present these findings of fact, and the same will be settled in accordance with District Court rule No. 34. 21 F.(2d) 465 COMPAGNIE GENERAL TRANSATLAN- to recover $200, which was paid to the col TIQUE V. UNITED STATES (two cases). District Court, S. D. New York. July 7, 1927. 1. Courts 426-Action for deposit taken for fine for bringing illiterate immigrant held maintainable as "founded upon law of Congress" (Tucker Act being 28 USCA § 41 [20]; Immigration Law 1917, § 9 [Comp. St. § 428940]). Where sum is deposited to secure payment of prospective fine for violation of Immigration Law 1917. § 9 (Comp. St. § 42894e), by bringing an illiterate alien into the United States, and the fine is thereafter unlawfully imposed and the deposit is paid into the Treasury of the United States, an action to recover the sum is maintainable as an action "founded law of Congress," within the menning of the Tucker Act (28 USCA § 41 [20]; Comp. St. § 991 [20]), providing that the United States District Court shall have jurisdiction of claims against the United States founded upon any law of Congress. upon 2. Courts 426-Action for deposit, taken Where sum is deposited to secure prospec- At Law. Joseph P. Nolan, of New York City, and plaintiff in action No. 1. Joseph P. Nolan and John M. Lyons, both of New York City, for plaintiff in action No. 2. Emory R. Buckner, U. S. Atty., of New York City (Frank Chambers, Asst. U. S. Atty., of New York City, of counsel), for the United States. AUGUSTUS N. HAND, District Judge. The first of the above two actions was brought 21 F. (2d)-30 lector of customs for the port of New York, to be held as a special deposit pending determination by the Secretary of Labor as to the assessment of a fine amounting to $200 on account of bringing an illiterate alien to the United States. This alien was at first excluded as illiterate by the inspection officers of the United States immigration service, but thereafter granted permanent admission. The plaintiff paid the said sum over to the collector as an alternative to threatened refusal of clearance of its vessel unless and until such payment was made. Thereafter the collector, acting pursuant to an order issued at the direction of the United States Secretary of Labor, and at the special instance and direction of the Commissioner of Immigration for the port of New York, paid the said sum of $200 into the Treasury of the United States as an alleged immigration fine. The payment into the Treasury was made because the defendant was unmindful of the permanent admission of the alien. Section 9 of the Immigration Laws (39 Stat. 880 [Comp. St. § 42894e]) provides that, if it shall appear to the satisfaction of the Secretary of Labor that the illiteracy of an immigrant might have been detected by the exercise of reasonable precaution prior to the departure of such alien from a foreign port, such person shall pay to the collector of customs of the customs district in which the port of arrival is located the sum of $200 for each violation. The section also says that: No vessel shall be granted clearance papers pending the determination of the question of the liability to the payment of such fines, or while the fines remain unpaid, nor shall such fines be remitted or refunded: Provided, that clearance may be granted prior to the determination of such questions upon the deposit of a sum sufficient to cover such fines." The second case contains three causes of action. The first alleges that the plaintiff brought to the United States an alien named Taboada, who was ordered excluded and deported by the Secretary of Labor on the ground that he was a quota immigrant and not a nonquota immigrant as specified in his visa. The plaintiff was advised by the Commissioner of Immigration that upon the disclosed facts a fine of $1,000 had been incurred, and gave plaintiff 30 days within which to submit evidence to show why such fine should not be collected; that plaintiff submitted such evidence showing that he came under section 4(b) of the Immigration Law (43 Stat. 155 [8 USCA § 204]), and was "an immigrant previously lawfully admitted to the United States, who is returning from a temporary visit abroad"; that there after, notwithstanding the alien was returning from a temporary visit abroad, the plaintiff was notified by the defendant that the Secretary of Labor had directed that a fine! be imposed, which fine of $1,000 was paid to the collector of customs under protest, solely to avoid damage due to delay or refusal of clearance of the plaintiff's vessel. It is further alleged that no statute of the United States was violated, and that the act of the Secretary of Labor in imposing a fine was without lawful authority and arbitrary, and that the defendant received said money to the use of the plaintiff. The second and third causes of action are similar in principle, though having somewhat different facts. The law under which the fines were imposed in the second case was section 16 (a) and (b) of the Immigration Act of 1924 (8 USCA § 216), which reads as follows: "Sec. 16 (a). It shall be unlawful for any transportation company, to bring to the United States by water from any place outside thereof (other than foreign contiguous territory) any quota immigrant having an immigration visa the visa in which specifies him as a nonquota immigrant. "(b) If it appears to the satisfaction of the Secretary of Labor that any immigrant has been so brought, such transportation company shall pay to the collector of customs of the customs district in which the port of arrival is located the sum of $1,000 for each immigrant so brought. ⚫ No vessel shall be granted clearance pending the determination of the liability except that that clearance may be granted prior to the determination of such question upon the deposit of an amount sufficient to cover such sums. United States, or for damages, liquidated or unliquidated, in cases not sounding in tort, in respect to which claims the party would be entitled to redress against the United States, either in a court of law, equity, or admiralty, if the United States were suable." The basis of the within causes of action is a "law of Congress," so that the discussion in the briefs as to whether there can be a recovery upon an implied contract is unimportant. For a long time claims to recover taxes illegally exacted have been recoverable under the first class provided for by the Tucker Act. As Justice Holmes said in United States v. Emery, Bird, Thayer Realty Co., 237 U. S. 28, 35 S. Ct. 499, 59 L. Ed. 825, when discussing a case where it was sought to recover taxes paid, under protest: "Claims like the present are 'founded upon' the revenue law." To limit the recovery in cases "founded" upon a law of Congress to cases where the law provides in terms for a recovery would make that provision of the Tucker Act almost entirely unavailable, because it would allow recovery only in cases where laws other than the Tucker Act already created a right of recovery. "Founded" must therefore mean reasonably involving the application of a law of Congress. Dooley v. United States, 182 U. S. 222, 21 S. Ct. 762, 45 L. Ed. 1074, is in accord with this reasoning. There custom duties were improperly exacted. Justice Brown there said: "The first section" (of the Tucker Act) "evidently contemplates four distinct classes of cases: (1) Those founded upon the Constitution or any law of Congress, with an exception of pension cases; (2) cases founded upon a regulation of an executive department; (3) cases of contract, express or implied, with the government; (4) actions for damages, liquidated or unliquidated, in cases not sounding in tort. The words 'not sounding in tort' are in terms referable only to the fourth class of cases." Now in the first case, the deposit of $200 was made by virtue of the provisions of section 9 of the Immigration Laws, was simply to secure the government for a fine, and was payable to the plaintiff as soon as a determination was made in favor of the admissibility of the alien. Here is one of the few cases where an act of Congress, to wit, section 9 of the Immigration Laws, itself creates a right in the plaintiff, so that the cause of action asserted seems clear. [2] In the second case, all three causes of action are founded upon sections 16 (a) and (b) of the Immigration Act of 1924, and fall directly within the principles laid down. 21 F.(2d) 467 The issues in the first two causes of action are whether the immigrants were or were not returning from a temporary visit abroad, and in the third cause of action whether the immigrant was a temporary visitor, and consequently should have been properly admitted for a limited time. The government strenuously insists that, under the doctrine of United States v. Holland-America Lijn, 254 U. S. 148, 41 S. Ct. 72, 65 L. Ed. 193, the plaintiff cannot recover. I confess that I have had some difficulty in reconciling that decision with such cases as Dooley v. United States, 182 U. S. 222, 21 S. Ct. 762, 45 L. Ed. 1074, and United States v. Emery, Bird, Thayer Realty Co., 237 U. S. 28, 35 S. Ct. 499, 59 L. Ed. 825. There seems to be a distinction, however. In the Holland-America Case the government required a transportation company to pay certain hospital charges for maintaining immigrants and treating them prior to their examination by immigration officials. It is clear from reading the opinion in the court below (53 Ct. Cl. 522) that, upon the admitted facts, the statute under consideration had no application. Section 16 of the Immigration Act of 1907 (34 Stat. 903) provides: "That where a suitable building is used for the detention and examination of aliens, the immigration officials shall there take pra, where, upon the admitted facts, there seems to have been scarcely any color of right in attempting to collect expenses of detention of aliens from the transportation As Mr. Justice Holmes said in company. the Emery Case: "However gradually the result may have been approached in the earlier cases it now has become accepted law that claims like the present are 'founded upon' the revenue law. The argument that there is a distinction between claims arising under' (Judicial Code, § 24, first) and those 'founded upon' (Id. § 24, twentieth), a law of the United States, rests on the inadmissible premise that the great act of justice embodied in the jurisdiction of the Court of Claims is to be construed strictly and read with an adverse eye." I can see no reason why the doctrine as to taxes should not be applied to penalties unlawfully exacted. The motions of the government to dismiss are accordingly denied. YALE ELECTRIC CORPORATION V. ROBERTSON, Commissioner of Patents, et al. charge of such aliens, and the transporta- District Court, D. Connecticut. tion companies, • shall be relieved of the responsibility for their detention thereafter until the return of such aliens to their care." It is apparent that the government officials in the Holland-America Case were acting outside of the statute, because, upon the finding of the Court of Claims, Ellis Island, constantly used for detention and treatment, was a "suitable building." In other words, the immigration law in no way applied to the facts. As Mr. Justice Day remarked (at page 153 [41 S. Ct. 73]): "We think that the statement of the substance of the petitioner's claim, shows that it rested upon payments alleged to have been made under duress because of the wrongful and tortious acts of officials of the United States government acting without authority in law in coercing the claimant to pay the sums demanded." In my opinion, the present case more nearly resembles actions like United States V. Emery, Bird, Thayer Realty Co., 237 U. S. 28, 35 S. Ct. 499, 59 L. Ed. 825, allowing recovery of taxes unlawfully exacted, than United States v. Holland-America Lijn, su 1927. No. 1854. August 10, 1. Trade-marks and trade-names and unfair competition 21-Registration by complainant of the word "Yale" as a trade-mark held properly refused. Complainant, manufacturer of flashlights, dry cells, and storage batteries, in 1922 adopted as a part of its corporate name and sought to register as its trade-mark, the word "Yale," printed in the same style and with similar surrounding lines, so as to make it closely resemble the word "Yale" as used for many years by defendant and its predecessors as a trade-mark for locks and keys, and which had become identified by the public with its products. The products of both parties are sold in hardware stores generally. Held, that complainant was properly refused such registration. 2. Trade-marks and trade-names and unfair competition 70(1)-Complainant, by using defendant's trade-mark and simulating its advertising, held chargeable with unfair competition. Complainant by using not only defendant's well-known trade-mark "Yale," but also similar advertising of its goods as "Yale Products," "Yale Line," "Yale Quality," etc., held chargeable with unfair competition. 3. Trade-marks and trade-names and unfair competition ~67-One purpose of statute is protection of public against confusion of products and the source of products. The purpose of the trade-mark statute is not only to protect manufacturers and dealers against unfair competition, but also to protect the public against confusion of products and also the source from which they came. 4. Trade-marks and trade-names and unfair competition 93(1)-Doubt as to confusion caused by unfair practice to be resolved against newcomer in field. If there is a doubt whether an alleged unfair practice will produce confusion with the public as to products or their source, it is the duty of the court to resolve the doubt against the newcomer in the field. In Equity. Suit by the Yale Electric Corporation against Thomas E. Robertson, Commissioner of Patents, and the Yale & Towne Manufacturing Company. Decree dismissing bill, and granting injunction on counterclaim. William S. Pritchard, of New York City, for plaintiff. Archibald Cox, Louis H. Porter, and F. Carroll Taylor, all of New York City, and Frederick C. Taylor, of Stamford, Conn., for defendants. THOMAS, District Judge. This suit, which is to compel the registration of a trademark, arose under the trade-mark laws of the United States (section 9 of the Act of February 20, 1905 [15 USCA § 89]), and was brought under section 4915 of the Revised Statutes of the United States (35 USCA § 63; Comp. St. § 9460) and also under section 24, subsection 7, of the Judicial Code (28 USCA § 41; Comp. St. § 991). The plaintiff, Yale Electric Corporation, is a New York corporation having its principal place of business in the borough of Brooklyn, city and state of New York, where it is engaged in the manufacture and sale of flashlights and dry cells, and in the sale of storage batteries. The defendant Thomas E. Robertson is the United States Commissioner of Patents at Washington, D. C. The defendant the Yale & Towne Manufacturing Company, the real party in interest, is a Connecticut corporation having its principal place of business in the city of Stamford, state of Connecticut, where it manufactures locks, builders' hardware, chain hoists, and small electric trucks for industrial purposes and other articles and appliances. The defendant Thomas E. Robertson has appeared and in his answer states that he has no particular adverse interest in this case; that the Yale & Towne Manufacturing Company is the real party in interest; that he is informed that the company will defend this suit, and so does not deem it necessary to further answer, or take any active part in the proceedings. The defendant the Yale & Towne Manufacturing Company has filed its answer, together with a counterclaim, and has actively defended. [1] Plaintiff was incorporated in 1912 as the International Electric Novelty Company. In 1919 it changed its name to Franco Electric Corporation. In 1922 it changed its name to Yale Electric Corporation, and began selling its products under the name "Yale." On November 7, 1922, plaintiff, in the manner prescribed by law, presented to the United States Patent Office its application, serial No. 171,718, for registration of the word "Yale," inclosed in an ellipse and the whole inclosed in an irregular octagon, as a trade-mark for batteries, battery cells, flashlights, lighting outfits, such as are particularly adapted for Christmas trees and similar decorative purposes. The application was allowed by the Examiner of Trade-Marks, and the trademark was published in the Official Gazette on January 9, 1923. On April 4, 1923, the defendant the Yale & Towne Manufacturing Company filed an opposition to the registration of said trademark, being the registrant of "Yale” as a trade-mark for locks and keys, registered in the year 1907, and for various articles of hardware, registered severally in the years 1909, 1914, and 1922. Testimony having been taken by both parties to said opposition proceedings, the case was submitted on the pleadings and evidence and argued by counsel for the parties before the Examiner of TradeMark Interferences. On November 12, 1924, the Examiner rendered a decision wherein he sustained the opposition and held that plaintiff was not entitled to the registration. Thereafter the plaintiff appealed from the adverse decision of the Examiner of TradeMark Interferences to the Commissioner of Patents, who, on the 1st day of April, 1925, rendered a decision wherein he affirmed the decision of the Examiner and sustained the opposition. On June 5, 1925, plaintiff appealed from the decision of the Commissioner of Patents to the Court of Appeals of the District of Columbia, which court, on or about the 5th day of April, 1926, affirmed the decision of the Commissioner of Patents and sustained the opposition of the Yale & Towne Manufac turing Company, 56 App. D. C. 242, 12 F. (2d) 183. Thereupon suit was brought in |