(concurring). Counsel for appellant in their brief raise the following points:
1. The certificates of trade-mark are invalid and inoperative as evidence in this cause: (a) Because the trade-mark act of February 20, 1905, is unconstitutional and inoperative; (b) because said act limits infringements to such as occur in interstate commerce.
2. Said certificates of registration do not purport to protect the use of the word “Abricotine.”-but only the signature and initials on the shield. ,
3. Use in interstate commerce was not shown, and the jurisdiction therefore failed.
• 4. The word “Abricotine” is descriptive and incapable and adoption as a trade-mark.
5. The court erred in awarding an accounting of profits.
It is doubtful whether the assignments of error are broader than this; but, if so, such as are not included within the points relied on in the brief may be treated as abandoned. In the argument, beginning on page 5 of appellant’s brief, the contentions are still further limited. It is evident that appellant elected to stand upon, first, unconstitutionality of the 10-year clause; second, failure of proof as to use in interstate commerce; third, the failure of the certificates to protect the word “Abricotine” apárt from the’ signature, initials, and shield; fourth, the award of accounting.
We hold the act of 1905 to be constitutional. The mark was regularly registered under that act; this makes a prima facie case of ownership in appellee. Under that act the declarant is not limited to marks which are confessedly the subject of technical trade-mark; but terms not otherwise admissible as such are protected, provided the ten-year exclusive use of the mark is shown. This showing was made in the pre*408scribed manner to the Patent Office. It was accepted, and the certificate issued; this makes a prima facie case of ownership which it was incumbent upon appellant to overcome by satisfactory proof. Appellant has elected to stand upon the legal propositions urged. She made no attack by evidence upon the validity of certificate or mark.
When we uphold the act of 1905, many of the vexatious questions presented are removed. In the record it is conceded that the infringement occurred in interstate commerce. Registration under the act of 1905 established in appellee the ownership of a trade-mark, which stands for construction as any technical statutory mark. In Saxlehner v. Eisner & Mendelson Co., 179 U. S. 19-33, 21 Sup. Ct. 7, 45 L. Ed. 60, it was established that it is not necessary to constitute an infringement that every word of a trade-mark should be appropriated. It is sufficient that enough be taken to deceive the public in the purchase of a protected article. As this record stands, it would appear that the word “Abricotine” was an essential and vital part of the mark. This disposes of all the contentions of appellant except that respecting the accounting, and this point we have resolved in her favor.
[7, 8] I say this disposes of all the contentions of appellant, unless we may still consider whether the word “Abricotine” is a word in general use and merely descriptive of apricot cordial.' As I have said before, I do not think we can do so upon this record in the face of a valid registration under a valid act of Congress which gives to this mark the same legal effect as any other recognized technical mark. Some substantial showing, of which we can take cognizance, would be necessary to that end. Appellant should abide by the theory upon which she has elected to submit her case. There is in the record nothing which places before the court the part which the word “Abricotine” plays in the French language,, nor the relation between that name and. the cordial in French commerce; nor do we take judicial notice of such facts whatever they máy be. As to uses and customs, we are confined to our own country. Michie’s Encyclopedia of United States Supreme Court Reports, vol. 7, p. 676; Dainese v. Hale, 91 U S. 13, 23 L. Ed. 190. The court is, of course, bound to take judicial notice of the ordinary meaning of all words in our own tongue (Michie, vol. 7, p. 680); and upon such a question dictionaries are admitted, not as evidence, but only as aids to the memory and understanding of the court (Nix v. Hedden, 149 U. S. 304-307, 13 Sup. Ct. 881, 37 L. Ed. 745). We-have, judicially, neither memory nor understanding of the French language, and appellant has not seen fit to enlighten us by the record. We do take judicial notice of well-known facts in history such as political questions which go to form current history; well-known facts in legal history; certain recognized facts in economic history. But the question of use of a trade-mark, or trade-name, in foreign commerce is not history in this sense. Except in a very limited way and in matters of confessed notoriety, or involving ^universal experience, we do not permit presumed knowledge of such matters to control our decision in patent and trade-mark cases in our own country. Proof of use and the time and extent thereof are required; much less should we assume such knowledge affecting a foreign jurisdiction and a for*409■eign language. The mere presence of the word “Abricotine” as applied to liqueurs in a French encyclopedia bearing a date subsequent to the beginning of the ten-year period, and more than twenty years later than the alleged original registration of complainant’s French trademark, cannot be received as establishing a prior general use that would •defeat complainant’s claim. For aught that appears Garnier’s product may have placed the term in the encyclopedia. As I have said, a prima facie case was made. The burden then shifted to defendant. She has elected to stand upon this meager record; and we are asked to try this case mainly by the French dictionary, in the absence of important and, perhaps, controlling concrete facts. Such a process is too abstract and incomplete for the determination of valuable property rights. C., B. & Q. R. Co. v. United States, 211 Fed. 12, 127 C. C. A. -, decided at the September term of this court.
[9] In the view I take, then, I do not think we may here determine, as an independent proposition, whether the word “Abricotine” could be indulged as a technical trade-mark, nor whether appellee has en'joyed the exclusive use of that mark for the statutory period as she alleges. I freely concede, from the able and learned argument of the dissenting opinion, that those questions are debatable. I express no opinion respecting them, and do not think the court can do so in this case. This may be said, however, that if the appellee could and did obtain French trade-marks, as she swears she did in her affidavit for registration, then under article 6 of the treaty for the protection of industrial property of March 20, 1883 (25 Stat. 1376), to which both France and the United States were parties, she would be entitled to protection in this country, whether or not we would have allowed such a mark as an original proposition under our laws. However, as is pointed out in the majority opinion, it is doubtful whether her citizenship is sufficiently proved to enable her to avail herself of the benefits of this convention. I mention it to show that the probable equities are not all on one side in any view of the case. For the reasons stated, I am constrained to concur in Judge SMITH’S opinion.