Specially concurring.
It is elementary that a trade-mark can not legally be assigned apart from the business or property in connection with which it has been used.
The record in the case at bar establishes that at the time Otto P. Glaser attempted orally to transfer the involved trade-mark to his son and daughter, he actually had in his possession and in his place of business a few boxes, possibly only two, of the candy on which he used the trade-mark. The principle of law involved is not, however, affected by the small amount of candy in his possession. He did not transfer the candy, the formula therefor, nor property of any kind. He simply agreed that he would not use the trade-mark, nor manufacture the kind of candy — milk chocolate — on which he *857used the mark. Obviously, the alleged transfer of the trade-mark was not incidental to the transfer of any business or property of Otto P. Glaser. This being so, I am of opinion that, by the attempted transfer of the trade-mark and his failure to use it thereafter, Otto P. Glaser abandoned it; that, as appellant had used the mark continuously for several years prior, and continued to use it subsequent, to its abandonment, on goods of the same descriptive properties, its title is superior to that of appellee; and that the issues in this case are controlled by the decision in the case of Mayer F. & J. Co. v. Virginia-Carolina C. Co., 35 App. D. C. 425.
For the reasons herein stated, I concur in the conclusion reached by the majority of the court.