The opinion of the court was delivered by: BAILEY
1. This is an action under Section 4915, R.S., U.S.C., title 35, sec. 63, 35 U.S.C.A. § 63, in which plaintiff seeks to have the court authorize the Commissioner of Patents to register to plaintiff a trade-mark on plaintiff's application No. 365,509, filed on May 28, 1935, under the Trade-Mark Act of February 20, 1905, U.S.C.., title 15, sec. 81 et seq., 15 U.S.C.A. § 81 et seq.
2. Plaintiff seeks registration of a mark consisting of a green circular figure, or disc, for use in connection with rubber soles and rubber heels.
3. In its application plaintiff alleged use of the mark on rubber heels and rubber soles since May 21, 1935.
4. Plaintiff's application was indicated as allowable by the Primary Examiner of Trade Marks on July 5, 1935, subject to opposition, and the mark was passed for publication.
5. Plaintiff's application for registration was opposed in the United States Patent Office by the Mishawaka Rubber and Woolen Manufacturing Company in an opposition proceeding No. 15,062.
6. In the opposition proceedings plaintiff and the opposer filed a stipulation containing, among others, the following paragraphs:
"4. Opposer manufactures heels, with its red circular trade-mark thereon, separate from its boots and shoes, and subsequently attaches the heels to the boots and shoes, but has never sold heels separately with its red circular trade mark thereon, to customers in this country.
"8. Opposer is not aware of any actual confusion in trade between the goods of Applicant bearing the mark of the Bradstone application here in Opposition and the goods of Opposer.
"9. Opposer has never used a green disc as a trade-mark on its goods.
"10. Applicant has made and sold heels, each bearing a red circular mark with a duck design thereon, and also heels each bearing a green circular mark with a duck design thereon, but discontinued the use of a red disc trade-mark since receiving notice from Opposer of its trade-mark registration No. 36,471."
7. The Examiner of Trade mark Interferences dismissed the opposition and adjudged that plaintiff was entitled to the ...