*1 given useful. to render a diluent products invention are varied this of of lacking words, appel- find In other not obtained. proofs recognition the means ****** of lants’ process could of the which the count copolymerizing suspension When put practice. into be monomers, must factor an additional solubility considered, namely affirmed. The decision of the is board suspending me- precipitant Affirmed. polymeriza- suspension Since dium. ethylenically unsaturated tion most generally conducted monomers media, frequently aqueous most water-solubility precipitant pre- While considered. must be cipitants with water-solubilities grams grams per
high to 20 as 15 employed, water a low water can be solubility of han- preferred because RUBINSTEIN, Application of HELENA recovery, proc- dling ease, ease (two cases). INC. well-known, essing As is economies. Nos. possible however, to decrease it is United States of Customs Court compounds water-solubilities Appeals. and Patent phase. adding aqueous to the salts May may employed to method also the water-solubilities decrease significantly precipitants utilized so present invention.
****** * * quantities of alkanol to about
required from about 30% weight monomer 50% the least with and the alkanol mixture required being precipitant amount of percentage highest cross- at
linking. process
Thus, successfully employ the count, must use a minimum one diluent, amount amount of critical particular
varying diluent cross-linking agent amount with the evi- also in the monomer mixture. water-solubility the diluent dent being importance, neces- of extreme phase aqueous if sary to add salts solubility in water ex- of the diluent parame- If these ceeds certain values. account, ferf-butyl al- into are taken
ters obtain apparently be used to can cohol according process of porous beads lacking But, find the count. relating proofs et the Meitzner al. impor- recognition conception is a recogni- parameter and a of these
tance parameters must be tion how these
439 appropriate We deem it to and treat dispose single appeals opin- of both in a ion.
It is stated the examiner’s Answer testimony prior that case a involv- ing appellant, Rubinstein, Helena v. Inc. (U.S.D.C.D.C.1963), F.Supp. Ladd 219 259, USPQ 623, affd. 141 that indicates appellant’s goods pasteurized. are in fact above-styled appeal involved an case from the refusal Patent Office Reg- Principal allow on the ister of the word for “PASTEURIZED” ground face cream that the word merely descriptive was goods. The District Court commented Saulsbury, City, New York as follows: Laforest S. record, attorney appellant. for plaintiff prede- The fact that and its C., Washington, Schimmel, D. Joseph cessor alone have the term used “PAS- Jack of Patents. the Commissioner for continuously TEURIZED” in connec- C., Washington, Armore, of counsel. D. E. massage tion with facial and creams thirty years, for over and have Judge, WORLEY, Chief Before so, only ones to is not do of itself designation, Judge, sitting by McGUIRE, secondary a sufficient establish BALDWIN, RICH, and ALMOND and meaning term, furthermore, and Judges. the fact that term has extensively been used so and such over ALMOND, Judge. * * * long period a cannot time sepa two here with registra- confronted properly for make a term single appeals from a for, rate applied particularly tion as in view Appeal af- Board1 Trial and plaintiff’s Trademark own the fact that one of regis firming examiner’s refusal deposition in his stated that witnesses Register appel entering ter the materials into cream “PASTEURIZED”2 substantially pasteurized. lant’s have been SPEC FACE CREAM “PASTEURIZED” citing Third In- After Webster’s New ground cream, on the IAL3 board, Dictionary,4 ternational af- “so was “Pasteurized” firming examiner, stated: incapable of highly descriptive as to be * * goods.” enough First use is clear generieally 1, 1923 asserted. word “PASTEURIZED” since March length for a of time does USPQ 152 445. 1. composition greatly change its chemical appli- 8144, Appeal No. Docket 2. destroy many pathogenic or- but does August 7, 150,720 filed serial No. cation ganisms and other undesirable bacteria 1962. spores organ- though and thermoduric appli- 8145, bacteria) Docket No. (as 3. Patent isms lactic acid survive. 150,721 August 7, filed No. cation serial New Webster’s International Diction- “pasteuriza- ary, Edition, defines Second tion” as: Dic- New International Third 4. Webster’s partial tionary “pasteurization” as: The temperature sterilization of fluid at defines (131°-158° P.) which does to check devised a method Pasteur change compo- milk) greatly (as its chemical or in- in wine fermentation organisms pathogenic partial volving sition. Certain sterilization of sub- temperature fluid) de- (as and other undesirable bacteria are at a stance 440 argument products not made descriptive all out that properly subjected pasteur- before the hence have been
which Osweiler, 52 CCPA ization, In re it would before us. is that likewise 691; USPQ ap- 617, deceptively misdescriptive as F.2d 145 809, 346 Allen, product CCPA plied but re to a could be USPQ subjected pasteuriza- has not been *3 tion. argument that Appellant the advances notwithstanding assumption the that the foregoing, since of the and In view capable of is not mark PASTEURIZED by creams, applicant’s noted goods those the from “substantially Court, the have been itself, others, finding, is not suf in such agree pasteurized”, Exam- with the registration preclude on the ficient to that the word “PASTEURIZED” iner citing Register, In re Sim possess capacity not to distin- does the 517, Co., 963, CCPA 278 F.2d mons 47 guish goods. applicant’s USPQ court In the 126 Simmons There can no that the doubt stated: pasteurization directly issue be Second, importance and of more by fore and dealt with the District Court * * * here, suggested] that is [it substantially testimony on the basis supple- placed on the a mark cannot be reproduced appellant’s us before in brief. register shown it can be mental unless matter, phase appellant On this recog- “average purchaser” that the cherry. proverbial had its bite at the However, nizes it as a trademark. argu Appellant’s present insistence and that not the forth is test set that committed ment the District Court 1091), applicable (15 statute U.S.C. holding in had error that the face cream exceptions provides, with certain “substantially pasteurized” is not here, pertinent “All marks that review, competence do within our nor capable distinguishing applicant’s consider it the factor of determinative registrable goods or services and upon the issue we are called to resolve reg- principal register” may be on the say pending appeals. it Suffice register. supplemental on the istered light that mark, when The test not whether the is dictionary definitions, holding that sought, actually is rec- is appellant’s face cream “substan had been average ognized by purchaser, or tially pasteurized” support ample finds is distinctive in the record. that Certain it commerce, capable it in of'becoming but whether subjected product is amenable to and was a mark which so. In fact process pasteurization. appli- on an has become distinctive barred, goods, if not otherwise Appellant cant’s an ex cites brief register, registrable principal on pired registration of PASTEURIZED expressly creams, from CREAM, massage hence is barred for facial and register. [Emphasis supplemental argues under the Act 1920 and that original.] recognition by “a this constitutes that Office the fact ‘PAS applied in view test subject is our that the trademark”; is a that TEURIZED’ be taken Simmons intervening pre factual situation would placed stat construction distinguishing ap vent the mark from Bourns, 821, F. ute in In re 252 CCPA 45 pellant’s and the continued USPQ 582, 38, subsequently 117 2d should than exclusive use enhance rather Mining applied & in In re Minnesota re-registrability. pointed diminish It is Mfg. Co., stroyed by process spores while pasteurization F. of milk is 145° lactic acid bacteria survive. The method period for a of 30 minutes followed was devised Pasteur fermen- rapid cooling to check to below 50° F. and stor- wine, milk,
tation age temperature. etc. The standard at USPQ (15 court In Bourns the der section 23 of the Lanham Act 1091). point- mark: that a U.S.C. Therein this court stated § * * * registra- ed out that the mark for which registered properly cannot tion is need be a trademark Supple- trademark, even on the “capable but that it must be a mark Register, it unless is intended mental primarily distinguishing applicant’s goods” from origin to indicate brief, might others. that the such nature registrable Principal be a mark likely ordinary purchaser would be Register upon adequate showing of sec- origin. consider that indicated such ondary meaning. thereto, In addition [Emphasis supplied.] court observed: do not consider Applicable statutory in addition to the met in the conditions are above-noted *4 policy considerations are those consid- apparent appeals. think it instant We erations, prevent regis- which could highly “pasteurized” the word that descriptive Principal Register, tration on the con- goods. appellant’s ac of So opinion sidered in our in In re Deister logical cepted, the inference follows Co., Concentrator primarily it not intended “to indicate was USPQ 314, apply which nothing goods.” origin of find the equally regis- to on both impact allay of that in of record to the [Emphasis ters. added.] Nor that mere ference. do we believe court in Deister the case deline- descrip unquestionably addition of the ated a series of truisms to the common cream” and tive words “face commendatory cases, observing trademark that not “special” pri term everything that enables to one determine mary “pasteurized” in results a word source, distinguishes goods, acquires or then as mark which can considered be secondary meaning protected will be distinguishing appellant’s capable trademark, and that: speci of others. The cream from that * * * weight authority the clear record disclose that “PASTEUR mens of shows the support courts will appears IZED” internationally in association with rights any exclusive shape in word or “Helena well-known name which, opinion, in their public usage concurrent Rubinstein.” would, Such right has the to in use the absence of judgment, in our be emanative patent copyright protection. or ordinary pur that the the conclusion in mark not consider the chaser would appellant While it is true that Thus, goods. origin dicative enjoyed long and no other has had and prescribed in Bourns are the conditions wordings issue, agree use of the in by aptly not met. This stated view with the observation of the examiner case, District in the Rubinstein the previously Court that: following to, adverted Applicant’s long wording, use of the language: and the fact that others have used as of “PASTEURIZED” up The use time, to this does not make it by plaintiff herein is made apt description less an for the not of calculated cause a nature which others the trade are recognize purchasers term as this entitled to use. origin plaintiff’s an for indication summary, persuasive we find as a term used face cream rather than merely argument of the solicitor that: pro- to describe face cream appellant’s goods Whether pasteur- are or plaintiff could [be] which duced shows, ized as simply evidence or could [Emphasis pasteurized. add- has been be normally pasteurized, or would ed.] expected average purchaser Co., Mining Mfg. pasteurized Minnesota In re designated because so here, registration un- supra, as the marks registered, to be be, mark is not a with it must legally appropri- as whole very appellant cannot distinguish- capability definite for descriptive term common ate ** * meaning ing within exclusion use own its Judge Almond’s pas- of section may desire who others all why given any it is not. reason they *. has sell creams the face teurize registrability is is that Certain speak marks that the us It seems sep- individual, by the not determined appel- irrefutably themselves for the four descriptiveness of three of arate or pasteurized sub- creams are lant’s face stantially Conceding as “face cream” words. descrip- clearly so, so “pasteurized,” about descriptive as incapable of to be tive What about SPECIAL? them from including combination words overall others. around PASTEUR- quotation (cid:127) records and the basis these On IZED? per- counsel, arguments are not gave separate considera- The board error in the decision suaded reversible “long-form” The so- mark. tion to the according- erroneously that “a states brief licitor’s ly affirmed. ‘Pasteurized’, of whether determination Affirmed. cream, registerable with face use Register desposi- (dissenting part, RICH, *5 appeals of the two at bar.” tive [sic] Judge, joins). McGUIRE, whom attempt to made a serious The examiner appeal result as No. I in the concur footing. mark on its own deal with this ap- affirming rejection of ground rejection His register plication to “PASTEURIZED.”1 mark “is believed to constitute whole opinion insofar as it from the I dissent goods, apt descriptive applicant’s name reg- application to affirms refusal consequently incapable and tinguishing dis- ister the mark its in commerce.” supporting analysis His was: FACE CREAM “PASTEURIZED” wording merely drawing SPECIAL applicant’s are indicates that appeal think the No. 8145. I specialty in face creams in line quite con- two marks different involve goods, pas- and that the same is In the former case we are siderations. teurized. dealing single descriptive prior the Dis- as well argument too I consider forced respect trict of Columbia courts with up. appeared stand seems what descriptiveness In of that word. to be the first office action. In the final consisting latter, we have a “mark” rejection the examiner modified “ phrase to which there as. four-word contending Special,’ ‘Face Cream prior adjudication has no been the common [is] name capability question to which the face cream.” I think don’t that conten- goods (face distinguishing applicant’s tion will hold water. kind of a What cream) from the of others rests product Special”? is “Face In Cream on a different factual foundation. “special” descriptive? sense My Answer, law views his examiner stated his essentially quotation in nothing forth in set conclusion that the whole mark is my opinion apt description Almond’s from but “an for case. I am unable in the Simmons which others in the trade are entitled why imagine circumstance, reason “PASTEURIZED” see use.” I can SPECIAL, out, considered as pointed FACE CREAM none virtue Any appearing quotation part 1. tered are of the marks themselves as regis applications. mention the marks described in the competitor of Helena Rubin- of which right stein, Inc., to mar- have would product labelled
ket FACE CREAM
“PASTEURIZED” think the ex- I therefore
SPECIAL. rejection without foundation
aminer’s here below and its affirmance re- I No. 8145 would
is error. On
verse. AMERICA, SORTEX CO. OF NORTH Inc., Appellant,
v. STATES, Appellee.
The UNITED Appeal No.
Customs
United States Court Customs Appeals. and Patent
Feb. *6 Siegel, Davidson, Mandell & New York
City, appellant (Joshua Davidson, M. Kamnitz, City, Allan H. York New counsel). Jr., Weisl, Atty. Gen., Edwin L. Asst. Rosenthal, Alan Baptiste, S. Patricia S. Washington, C.,D. for the United States. WORLEY, Before Chief RICH, ALMOND, BALDWIN and KIRKPATRICK,* JJ.
ALMOND, Judge. America, Inc.,
Sortex Co. of North importer, appeals judgment from a Judge, Pennsylvania, by designation. sitting Senior District Eastern District