*1 too, reasoning, The examiner’s and then first designed inserted incomplete, calls caps be somewhat positioned before appears that conclusion. the same port explosion holes placed on the considera- position on a this was based resulting relationship is one that the disclosed tion entire structure of the intercon- rather direct abutment Caldwell, including primary arguendo, the double assume We will also nection. charge patentee’s and the stated units although dispute, there designing purpose his structure. for so appealed interconnected claims define an Containing missing premise, which Caldwell’s which differs from structure obviously im- we consider to have been they secondary are shown units as plied from the context port clo- spaced relationship with the (although not wish to remarks we do Figure patent, place 2 of sures in position omission), condone such this swpra. may ordin- be stated follows: “One of becomes whether thus issue ary art, aware of Caldwell’s skill art, of the Caldwell aware skilled in but, patentee, who disclosure unlike disclosure, it obvious consider would firing was concerned with simultaneous caps port closure connect charges precisely the same them charge make Caldwell units of plane, being simple more concerned with must single we Here structure. appellant into loading replacement and efficient disagree hold shaped charge explo- units into fairly supports the conclusion record ports, sion would consider it obvious it would be obvious. split the double unit of Caldwell and positions of both the exam- port caps directly connect the closure long assertions and board are iner charge all the units.” Our reasoning, it is we feel rather short the record before us is that remarks of that the fair consider reaching substantial basis for this con- discussion board were limited Accordingly, clusion as well. the deci- lan- secondary not to the unit and Appeals sion of the Board of referring guage of the examiner rejection of claims 8 and 9 is af- charge primary It becomes double unit. firmed. then, position was clear that the board’s presumption based on the that there nothing requires the reference secondary separated units be caps and it therefore would and, apparently, desirable
obvious cap
to connect
charge employment unit. The of a fric-
tional pedients mary cap tion secondary one of unit since telescoping relationship charge charge prevent several obvious units to accomplish unit unit relative properly relative connected to the connection. assembly reorganiza- having the unit would orient the would be pri- ex- Application of SUN OIL COMPANY. United States Court of Customs Patent and Patent May 28, Appeals. No. 8320. firmly then port. threaded within the reading Based our own ref- disclosure, erence we are not convinced
that such assertion is correct reasoning board, as we have in-
terpreted it, prevail. *2 submitted established a secondary meaning, denoting that
mark has become distinctive goods, lant’s within section (15 Act U.S.C. § application seeking registration on Principal Register alleges use since 1956. displayed The mark special on pumps, “blending pumps,” ap- pellant’s applica- service stations. designated tion is a continuation of an application July earlier filed in which Principal Register for the same mark gasoline for and refused the Trade- Board on the ground that merely the mark was a de- purchasers connotation to applicant’s goods.2 Answer, In predicated his the examiner ground refusal of merely descrip- CUSTOM-BLENDED is appellant’s goods tive of within the mean- 2(e) (1) of section because it is so appellant’s blended gasoline Johnson, Pa., Philadelphia, Donald R. as claimed. It was the ex- attorney record, appellant. for aminer’s CUSTOM- merely BLENDED informs Joseph Schimmel, C.,D. grades gasoline that various ap- Patents, the Commissioner D. pellant’s blending pumps are custom Lady, Washington, C., Lenore D. them; blended for the word “cus- counsel. commonly things tom” is used to indicate RICH, Acting Judge, Before order; made to ALMOND, LANE, BALDWIN and significance when used in con- Judges, Chief Judge, East- gasoline; nection with ap- blended Texas, sitting by designa- ern District of pellant is not ap- entitled to exclusive tion. propriation term, of this which so gasoline; describes custom-blended ALMOND, Judge. the conclusion derived from brings Company appeal Sun Oil by appellant purchas- conducted decision of the Trademark Trial appellant’s who are ers Appeal Board, USPQ Blue Sunoco know that affirming examiner’s refusal gasoline is custom blended. appellant’s application low registration, In refusal of “CUSTOM-BLENDED” merely the board stated that the mark goods criptive within the meaning multple- 2(e) (1) of section grade gasolines, is no Trademark Act of 1946 merely “‘CUSTOM-BLENDED’ has a (1)) and because Company, February 211,939 USPQ 2. Oil re Sun 1. No. filed Serial incorporating relying largely ion on and it will significance ap- of the board. patrons of immediately indicate disagree with I do not various plicant’s service stations majority’s opinion, said in the dispensed thereat grades of evidence, survey by which it accord the and re- their needs custom blended attempted thereof in view quirements”; significance apparently accord- prior applica- *3 applicant’s the decision by ed The examiner ac- applicant it board. upon tion, to it was incumbent agree I with corded it none. do not circumstances and the facts show that turns changed statement case board’s that “This have decision since that “ sufficiency applicant’s upon of evi- as now serves ‘CUSTOM-BLENDED’ “secondary meaning.” of dence” origin applicant’s of of indication an general public”; that this case was examiner upon case, the suf- turned therefore, that CUS- reported, as board ficiency applicant’s that of evidence highly descrip- “is so TOM-BLENDED regard; only conclu- definite that “the applicant’s tive of can sion that be drawn is of purchasers who are (My emphasis.) as If that is claimed.” gasoline know applicant’s with ‘SUNOCO’ so, refused under blended”; gasoline is custom (1) no matter what support manifestly not does alleged meaning” “secondary evidence of that CUSTOM- assertion words, adduced; in other under acquired mean- has a BLEND proscribes facts of this the law case origin for an indication of as possibility jure “secondary of dea line, upon presented the record ing,” notwithstanding the existence of possess CUSTOM-BLENDED dea facto “sec- signi- descriptive than “other a meaning.” ondary Concen- Deister gasoline.” ficance of Co,, trator 48 CCPA given seq. synoptic of 963 et cited there- cases We have a able, and ex- in. well-considered board’s reiterating es- haustive without my opinion, sential These facts are facts of record. cannot, so under relevancy detailed their essence law, be accorded trademark supportive of board’s conclusions times, at some or some so enunciated in its people, places, or in a de We, therefore, incorporate decision. meaning. My facto view was by herein expressed by examiner. I think that registra- of board its refusal and affirm conclusively disposes of matter. tion. The of the Trademark objection out While I see no accordingly, is, appellant >to evidence has not its affirmed. meaning,” I established am unwilling or others to lead quantity in the Judge think that the fault was Acting (concur- RICH, ring). quality or evidence rather its descriptiveness words in the agree by I with the result reached registered.1 Appellant opin- majority supported which is an rejection. arguing does examiner’s 1. I think the erred solicitor only appear solely ever me that board not ease on the basis sufficiency one and different before us made issue applicant’s At affirmed. refusal evidence that CUS sufficiency best, is a in now serves an TOM-BLENDED as argument. second-string origin. not dication again encouraged try type product, is nonethe- should meaning.” prove “secondary less entitled if the mark business, agree has, fully particular association with a come which I do not user, primarily identify its rather than examiner he said part product, “custom” word contracting signifi- interested in with the trade- “has Application mark user. of Automatic cance.” none. has Mfg. Radio F.2d has descriptive Whether “pump-blend- tive term acquired meaning depends has ed.” particular case. facts each “gen- appellant calls —or Inc., Revlon, E.W. Bassett Co. v. term; product may but a have eric” — (2d Cir., 1966). F.2d 868 generically more than one name. Because merchandiser Briefly, it has been shown that *4 onto one latched lant has used the competitors mean can force its gasoline exclusively continuously to limit to the themselves use of period years. over a of some twelve others, appellant, me, it seems to advertising There is evidence of extensive trying do here. All large o.f and sales volumes of belong product public names during line period. under that mark product itself, example, domain. The Surveys suggest of record in at in the United States least two areas where there other England. petrol Clearly but both multi-grade, pump-blended marketers of pro- those names remain free of gasoline, prietary claims, country. in either So associated mind with this is, my respect pump- preponderance in a which can blended and custom-blended. The ex- by recognition be accounted for aminer stated the factual basis for this origin. There is no evidence which would “custom,” view in out that inas imply the mark is of custom-service,2 custom-built, custom- granting tive nature cut, custom-made, custom-tailored, cus- deprive therein to the user tom-work, etc., merely indicates right others of according their use of to normal is done de- customer’s language. exactly sire. how give —to light facts, respectfully these customer he what asks for. I can submitted that of the Trade- of no apt. term which is more mark Trial should be Bailey Meter reversed and CCPA 1136 basis that the mark CUSTOM-BLEND- Judge (dissenting). acquired secondary meaning District ED has with- in Section of the Act Under the doctrine of trademark, though originally judicial that, anyone building, take notice station the words sees CUS- can observe on the TOM SERVICE letters a foot streets red high past if one looks across white front of the build- ing. pumps of a station Sunoco apparently front of the standard service