*1 characters which the said identification 41 C.C.P. A. Application of HOLLYWOOD cooperative adjusting unique are relationship. BRANDS, Inc. In the board’s Customs, United States Court Wakefield, we

based on either Merrill or and Patent physical are constrained note that 1954. appealed claim structure set forth is, old, be, admitted to be must ing nothing stack of bound material, strip of known tickets recognition capable of the sole difference printing identifi in the or other resides appellant’s device. cation media found on position appreciate appellant’s

While we claimed, to the combination assuming that, pres it is our view in the device ence of novel features wholly

question, is confined hereinbe

identification characteristics detail, patentable

fore discussed

novelty principally predicated arrange printed on mere being, (such printing ments thereof practical the sole medium of

identification) basically but must reside Clark, physical structure. See re 1166; 455, C.C.P.A., Patents, Coe, Sterling, supra; In re App.D.C. Conover v. O’Connell,Judge, dissented. 377; and In 99 F.2d re C.C.P.A., Patents, Rice, 132 F.2d urges alleged Appellant that his inven- recognized providing

tion means problem defying solution overcome a industry, as evidenced wide

instantaneous commercial success. Con- ceding considering thereof,

the truth positive elements to.

such factors as carefully weighed, nevertheless persuaded that the matter de- deserving appeal is fined in the claim on grant. dignity patent stated, reasons hereinbefore

For the

the decision of the

affirmed.

Affirmed.

JACKSON, Judge, retired, herein *2 goods origin his of of the source' goods

rather than itself.” proceeded to hold that failed to its mark was sub- stantially indentifying capable of meaning goods of the within the 2(f). of Section Appellant here the com- contends that holding missioner’s constitutes reversible error. Miller, Chicago, Ill., for Theodore W. determining quote issue we appellant. appropriate portions in- of the section E. D. C. L. volved: Moore, Washington, (Clarence W. by Sec. 2. “No trade-mark of of the Commissioner goods applicant the distinguished of Patents. goods of from the Judge, registration others shall be refused JOHNSON, WORLEY, register principal on the on account Judges. (retired), of its unless it— nature ****** “(f) Except as excluded appeal This is an from the decision (a), (b), (c), (d) in subsections acting Examiner-in-Chief, for the section, nothing of this herein shall Commissioner, the decision of registration prevent the of a mark refusing registration the examiner on applicant which has be- Register Principal appellant’s of applicant's come of distinctive applied mark “Butter-Nut” as to candies. goods in commerce. The Commis- application appellant, Hollywood of may accept prima sioner facie doing Holly- Brands, Inc., business as evidence that the mark has become February 27, Candy Co., was filed wood distinctive, applied appli- of Trade- under Section commerce, proof cant’s of July Mark U.S.C.A. § Act substantially exclusive continu- alleges 1052(f). Appellant November ous use thereof as a mark 20, 1916, as the date of first use of plicant in commerce for mark. next the date of the registration denied on The examiner filing regis- for its theory incapable that the mark was tration.” 15 U.S.C.A. 1052. § distinguishing There is others; no doubt that also that it was de- proof unregisterable that the burden of should ceptive and un- therefore applicant rest 2(e). Up- provisions of Section der the up but it set no standard which the appeal reversed the Commissioner on “distinctiveness” of a mark and observed that was to be first suggest determined other than to prohibits 2(e) Act “Section substantially exclusive and continuous merely registration mark that is use of a mark in commerce for the five goods. descriptive There is years immediately preceding application applicant’s mark de- doubt that no registration could be considered as scriptive at least some of the in- prima facie that it had become dis goods. gredients his Section tinctive. however, permits 2(f), if it has become so The-cases cited of such coun- applicant’s sel have been examined but we find none distinctive primarily sufficiently point indicates of them commerce be con- agreement however, find, trolling; an increas- While we we do still ing tendency require more and commissioner the above affidavits regis- per representa- cannot se be considered at,.the *3 purchasing public, tive of we think the tration under Section they impose. help sup- For same time in fairly our to port appellant’s position. language in used the think it ob- example, We the broad Searchers, candy way Wardens, vious Master, that the found to the case of consuming public Commonalty and in substantial of Co. and Assistants County of amounts. In view of the entire record in in Hallamshire Cutlers Co., before us do not think that affidavits York and Sexton v. Cribben consumers, youngsters Patents, 872, 878, presumably 779, C.C.P.A., F.2d main, disposi- necessary proper are essential to was controversy cause. think nor do we tion of that applicable facts bar. at it nothing We find in the involved impliedly section attempting Here, or im to establish poses an eligibility appellant unreasonable burden of for upon mark, for not for there shows that it has used its under, year province nor just period is within it to mentioned in the rigid provisions thirty-six read such statute, into it. more than We for but bearing believe years; that has satisfac candies that the torily eligibility twenty-three established of its mark in at least have been sold registration. states; view of that con established sub and it has that necessary clusion it exclusive, stantial, not, indeed, to reverse the if use de cision of the commissioner. of March the mark its candies. As 1952, appellant spent $1,135,000 Reversed. advertising years previous over six approximately JACKSON, Judge, retired, one-third that publicizing COLE, instant amount herein in devoted Judge. mark; of sales the volume eight years its “Butter $11,500,000.

Nut” candies reached Judge (dissenting). support appealed its efforts In further The decision from should be (1) mark has become distinc- affirmed for the reasons stated in the forty-two tive, appellant introduced decisions of the tribunals of Office; in vari- (2) affidavits of individuals identified candy capacities with the trade. The ous appellant, submitted even if were it appearing record five affidavits character, sufficient covers less than Oregon, were executed in states of Union; one half (3) of the states of the Carolina, York, Michigan, New South states, the remainder of such the use and Iowa. Each affiant states that he “Butter-Nut,” generic term, whether years many acquainted for has been descriptively used misdescriptively candy trade-mark, brand of manu- Butter-Nut appropriated always appellant, by appellant factured has there use, to its exclusive . regarded candy particular fittingly cause the term appellant; others, right, source of aas matter of in advertis carrying the term “Butter-Nut” is not considered dealing, on their in but any wáy descriptive to be ternuts therefrom, made distinguish by appellant Cridlebaugh Montgomery but is used v. Co., Ward & candy Inc., 646, of other C.C.P.A., Patents, manufacturers; impres- (4) appellant’s claim to exclu candy gen- sion is true with the trade sive use of “Butter-Nut” past eral. five has failed to acknowledge, as identical must, established Naf mark used .another Machine on-.bread. “Fluid Actuator for Pressure Baking ziger Company, 46 Schulze v. Components” App.D.C. 292. involved-herein, patent application Serial February 11,302, No. filed States the United the decision affirmed Office Primary rejecting Examiner 11 and 16 of for lack of prior .invention over art. Other *4 .claims, specific, which were more have 41 C.C.P.A. (cid:127)been allowed. Application et of HANSEN al. applicants It is the contention of the invention, in their as disclosed Customs and States Court United application, dependent adequate for. patent protection upon allowance 24, 1954. rejected Hence, appeal seek- this ing ruling a review of the board’s respect patentability pealed claims, rep- claim 16 which resentative and reads .follows: moving apparatus “16. rectilinearly guided com- machine ponent in either direction the com- relatively nested bination fixed housings cup-shaped inner and outer aligned substantially axially with re- to each other-and spect longitudinal axis of said component machine and with the open cup-shaped ends said hous- n ings directed toward com- said ponent,. cup-shaped member nest- housing over said" mov- inner longitudinally centrally -and able housing, outer said an inner annular ring diaphragm having flexible edge inner secured said inner housing edge outer secured pres- to said member to form a first chamber, sure an outer annular ring diaphragm having flexible edge outer secured to the side wall Youngstown, Klempay, Francis J. housing of said outer Graves, Washington, (James M. Ohio edge inner secured to said mem- counsel), appellants. C., D. pressure ber to a second cham- C. E. L. D. ber, diaphragm rings having said Washington, (H. Miller, S. rolling contact with the side walls of Pat- for the Commissioner housings during of said and member ents. normal of said movement member JOHNSON, direction, either means to conduct pressure pressure fluid under (re- to said Judges chambers, rigidly tired), and means -secured