The opinion
CONCURRING OPINION
Evans, Judge:
I am not convinced that the evidence in this case establishes commercial designation for Rockingham ware as being different from the adjudged definition quoted in the majority opinion. While most of the plaintiffs’ witnesses in answer to the question whether the definition given by the court in former decisions was the same or different from the trade understanding answered that it was different, yet the testimony of these witnesses, in my opinion, fails to establish a uniform, definite, and general understanding as to what Rockingham ware is and that such trade understanding differs from the common meaning. Their -testimony on the question of what Rockingham ware consists of was as follows:
Mr. Rosenfeld. Pottery consisting of a crude, unwashed clay covered with a colored glaze.
Mr. Van Nostrand. It was anything that was made of red clay was known in the trade as long as I have been associated with the trade, as Rockingham, irrespective of the particular glaze that is put on the ware.
Mr. Ratner. It was generally supposed it was a reddish or brownish earthenware body with glaze that ran, say, from a brownish to a blackish.
Later, this witness stated that it was not limited to brown or black glazes, but includes glazes that are accepted in the trade as being Rockingham glazes; that they are green, brownish, and blackish, and also include banded.
Other witnesses for the plaintiffs gave testimony on this point as follows:
*123 Mr. Raymond. An earthenware body with a highly lustered glaze ranging or varying from brown to black.
On redirect examination this witness said it must be composed of red or brown earthenware.
Mr. Friedbekg. Supposed to indicate teapots principally in dark high luster colors.
Mr. Falk. Merchandise with a terra cotta body and a highly lustrous glaze, principally various shades of brown to jet black.
However, it clearly appears from the following notice filed by the attorney for the defendant that the Government is abandoning its long-established practice in the classification of Rockingham ware. The notice is in the following language:
This office has reviewed the record in the above case and does not wish to file a brief.
I therefore join in sustaining the protest.