DISSENTING OPINION
Lenroot, Judge:I feel compelled to dissent from the conclusion reached by the majority of the court because, in my judgment, thé testimony does not establish commercial designation of the term “bag leather.”
I do not think that a reasonable interpretation of the decision of the lower court permits the conclusion that it found commercial designation was proved, but I agree with the statement in the majority opinion that if commercial designation was established by the testimony it is immaterial whether or not the lower court so found.
I am of the opinion that the testimony relied upon by the majority as proof of commercial designation shows nothing more than the trade’s understanding of the common meaning of the term “bag leather.” I take it for granted that 90 per centum or more of the leather used for making bags is leather of the bovine species, and that when the trade speaks of bag leather, a certain kind of leather made from hides of the bovine species is generally understood; but it does not follow that skins of other animals are not also made into leather which is used for making bags and known to the trade as bag leather.
In my opinion there is nothing in the testimony quoted or other testimony in the case that establishes that the term “bag leather” in the commerce and trade of the United States had a restricted meaning different from the common meaning, nor, as I construe the record, is there any testimony that there was a definite, uniform, and general trade understanding and designation of the term “bag leather”' which excluded the merchandise here in question-. It has been' thq rule that such proof is necessary to establish commercial designation. *430Sunde & D’Evers Co. et al. v. United States, 17 C. C. P. A. (Customs) 24, T. D. 43321; Draeger Shipping Co. v. United States, 15 Ct. Cust. Appls. 190, T. D. 42234.
It is significant that no witness was asked if the leather in question was known in the trade and commerce of the country as bag leather. If such question had been asked and the answer had been "no,” it might be held that the testimony showed that the leather here in question was excluded from the term “bag leather." As stated in the majority opinion, there were but two witnesses who testified upon the question of commercial designation.
One of them, the witness Hertz, upon cross-examination was asked the following questions and gave the answers quoted:
Q. Do I understand from your direct examination that bags, cases, and straps at and prior to 1922 were made of nothing but the leather of the bovine species?— A. That was the general accepted idea of it, yes.
Q, You know that cases were made out of other materials? — A. Some.
Q. So that in 1922 bags and cases were made of various kinds of leather, were they not? — A. Some.
This testimony clearly indicates, to my mind, that sealskin leather was not excluded, from the term “bag leather,” but only that bag leather was almost wholly derived from hides of the bovine species. He states that it was the generally accepted idea that bags, cases, and straps were made of nothing but the leather of the bovine species, and yet, immediately following, he states that there were some bags and cases made of various lands of leather. I think this testimony should be read in connection with his other testimony which, it is held, establishes commercial designation, and when so read the testimony as a whole falls far short of establishing commercial designation.
As to the other witness, Worsdell, whose testimony is relied upon as establishing commercial designation, he testified as follows:
Q. What did the term “bag leather” mean, when so used?' — A. Leather made from the cattle hides of the bovine species.
Q. Any further qualifications? — A. That is about all. [Italics mine.]
Surely this testimony can not be said to exclude the leather here in question from the term “bag leather.” His testimony is entirely consistent with the fact that bags and cases are almost wholly made out of leather of the bovine species; but the language “That is about all” not only does not exclude the leather here in question but, on the contrary, it inferentially includes some leather not derived from the bovine species, otherwise why should the witness say “That is about all” if all leathers other than those of the bovine species were excluded?
This court has heretofore been very strict as to proof of commercial designation. In the case of Passaic Worsted Co. et al. v. United *431States, 17 C. C. P. A. (Customs) 459, T. D. 43916, Presiding Judge Graham said:
* * * The rule of commercial designation is a wise one, but the rule is narrow and must be closely adhered to.
. Because I believe that the majority opinion, in effect, relaxes the rule of commercial designation heretofore followed by this court to such an extent that hereafter proof of commercial designation will be easy, where heretofore it has properly been difficult, I feel impelled to file this dissenting opinion.
In my opinion the judgment of the court below should be reversed.