delivered the opinion of the Court:
As the Commissioner did not question the right of Dennehy & Company to claim registration, both as a technical trademark, and by reason of the ten years’ use, under his substituted application, we will follow his example, but without intending to approve or disapprove the practice. He considered, first, the right to registration as a technical trademark, and denied it for reasons stated in the following extract from his opinion:
“The question of whether the words ‘Mountain Dew,’ when applied to whisky, are ‘descriptive of the goods with which they are used, or of the character or quality of such goods,’ so as to render them ineligible to registration as a technical trademark under the first part of sec. 5, of the trademark act, will be considered first. Judicial notice is taken of the fact that it is a matter of common knowledge that the term ‘Mountain Dew’ means whisky and is defined in the Century, Worcester, Webster, and Standard Dictionaries as follows:
“ ‘Mountain-dew. Whisky, especially Highland whisky. [Scotch.]
“ ‘The shepherds who had all come down from the mountain heights and were collected together (not without a quench of the mountain-dew or water of life) in a large shed. J. Wilson, Lights and Shadows of Scottish Life, p. 305.’ (Century Diet. 1890 ed.)
“ ‘Mountain-dew. Scotch Highland whisky that has paid no duty.’ (Worcester Diet. 1865 & 1902 eds.)
“ ‘Mountain-dew. Illicitly distilled whisky; so called from being very commonly made among the mountains.’ (Standard Diet. 1895 ed.)
“It is unnecessary to cite others than these commonly accepted authorities which are conveniently at hand. They show conclusively that the words ‘Mountain-Dew’ commonly mean whisky, or a particular kind of whisky.”
He also referred to certain testimony of Dennehy to the effect that the trademark was suggested' to him by an Irish sales*358man. who said that “the words ‘Mountain Dew/ in Ireland, are suggestive of whisky.”
We agree with the Commissioner that the words “Mountain Dew,” however fanciful the term may originally have been, are now generally recognized as meaning whisky; and we deem it unnecessary to add anything to his discussion.
The Commissioner was clearly right in denying registration under the “ten years clause” of the trademark act, because the evidence shows that the use by Dennehy & Company was not an actual, exclusive use of the same for ten years next preceding the passage of the trademark act. Worster Brewing Corp. v. Rueter & Co. 30 App. D. C. 428, 431; Natural Food Co. v. Williams, 30 App. D. C. 348, 351; Brown-Forman Co. v. Beech Hill Distilling Co. 30 App. D. C. 485, 486; Kentucky Distilleries & Warehouse Co. v. Old Lexington Club Distilling Co. 31 App. D. C. 223, 227.
The decision must be affirmed. It is so ordered, and the clerk will certify this decision to the Commissioner of Patents, as required by the statute. Affirmed.