48 App. D.C. 425 | D.C. Cir. | 1919
delivered the opinion of the Court:
The B. Y. D. Company opposed the application of the Atlas Underwear Company for the registration of a trademark for underwear, consisting of an oval within which is the picture of a young man wearing a union suit while he is being measured with a tape line extending from the crotch to the right shoulder, where it is held by two hands of a second person. A decision in favor of the opposer was given by the Commissioner of Patents.
Applicant does not deny the identity of the marks, as we understand the argument, but contends that its mark is register-able in the absence of a superior right in the opposer; that the latter has failed to prove trademark use, or use analogous thereto, of its mark, and therefore it has not a superior right and is not entitled to object to the registration of applicant’s mark.
We do not think the opposer is required to show a superior right in order that it may successfully resist the application. If it is on an equal footing with the applicant and can show probable damage, that will be enough. This court has declared more than once that a trademark use of a mark by an opposer is not necessary in a proceeding such as the one before us. Natural Food Co. v. Williams, 30 App. D. C. 348, 350; H. W. Johns-Manville Co. v. American Steam Packing Co. 33 App. D. C. 224, 226; Electro Steel Co. v. Lindenberg Steel Co. 43 App. D. C. 270, 273. The record discloses that the opposer was using the mark under consideration in connection with its business prior to the applicant’s coming into the field. It thereby acquired a right to its use, although not necessarily an exclusive one. If registration is granted to the applicant’s mark, that right would be sequestered and the applicant given a monopoly of the mark. This would likely result in damage to the opposer; hence, the latter has a right to resist the registration.
The decision of the Commissioner of Patents, sustaining the
Affirmed.
A petition for rehearing was denied March 19, 1919.