Lanham Act as a latter’s age an action conclusion on the applicant opposer cant, if to assume that descriptively, trant do not believe that Certainly or defects publication of the knowledge of the fringement use and when by by under subsection in which fect shall however, tion defense same “(5) contemplated [******] proved.” such a using majority him from a date descriptive 12 of this one represents party bringing quantum of That if against opposer to by has party is successful such continuous That this apply is established: one been is here, Lanham seems mark, one or those such an other than the charged possibility of only following (a) prerequisite to the continuously used registrant’s prior mark whose adopted without would defense. Act: registered section using defense it is reasonable degree for the area here, Act prior to the action possibility of the words. predicate (c) as an in- have at least Provided, prior defenses enjoin recognizes 13 of the privity bringing or de- of dam- mark against words sec- regis- appli- use use its I that rights descriptive DeWalt merely in this stripped possible. words, should these concurrent uses of party not made trademark sulting attached to such time of wise mere which hold the words as erties identified maintain the finding refusing registration find no cases istration under the Lanham established a able before the would be entitled It comes down to Magna registrable. allegation and, therefore, enjoy under the law same that the mark in can to describe the words of trademark long instance, by damaged by by I do not believe that legal complications opposer usage that under the interfere with registration registration can all the time, good and none action, be property, trademark deprive of a free damage trademark can be successful. rights another who at usage by anyone the words. its descriptive this—one phrase there must I do not believe any have goods, already had question under a mark other- DeWalt of its *1 registration do including reg- is a basis Magna 1946 act the of different usage, more than or sentence so without been for either words privileges should Act, who has use has Magna is not in its using prop- be a cited im- re- act be I opposition conclusion of an successful proceeding. possibility when- exists This registered. As a ever fact, his trademark matter of without bring being registered can an action one enjoin
to using someone endeavor similar words as 48 CCPA BART SCHWARTZ INTERNATIONAL very have situa- could well done this TEXTILES, Appellant, LTD., I court will tion. do not believe avoiding v. ever-present successful in registration denying possibility COMMISSION, TRADE FEDERAL Appellee. plaintiff valid trademarks. Whether matter. will is another No. 6599. be successful “Any provides person States Court Customs United damaged that he would be who believes Appeals. and Patent * * * of mark 14, 1961. April * * * may file a notice of verified * * opposition But the section opposer does state on what basis It me
will seems to be successful. allege though even one must
Worley, Judge, Martin, Chief
J., dissented. wholly or
Italy. are made Such fabrics spun rayon a contin- in which form uous is cut filament are fibers short The cut fibers. *3 yarn then produce method This woven into fabrics. textile Italy utilizing rayon developed in of was early product, 1929, new as as and the Washington, yarns C. Brylawski, D. and in Fulton both form of “fiocco” C., Washington, Brylawski, D. (E. fabrics “fiocco,” amounts Fulton stated counsel), extensively appellant. promoted and for was throughout the sold in United States Washington, C., Radnor, for D. C. Jess following it in trade decade and until appellee. World the Second was terminated RICH, Judge, WORLEY, Before Chief War. SMITH, Judges, and MARTIN and “fioc- The word record clear that the * Judge KIRKPATRICK, WILLIAM H. years twenty co” has for at been least industry to in used the Italian textile Judge. SMITH, distinguished yarn mean acting Commission, The Federal Trade rayon. from continuous The filament (15 under 14 the Lanham Act word “fiocco” has been used so 1064), 1064, peti- U.S.C. 15 U.S.C.A. § regulations Italy for official tariff reg- appellant’s for tioned cancellation years. many 1945, it has Since at least 20, 623,601, istration No. issued March accepted by the United Cus- States 20, 1956, on an filed June meaning staple rayon. toms Bureau 1955, for the mark for “tex- “FIOCCO” George White, in the dominant factor cotton, rayon, piece of tile fabrics in the George Company, went White Textile synthetic fibers, and mixtures thereof.” during City part to New York the latter alleged use and use in commerce is First August, 1954, to secure financial back- May 2, 1955. to be ing marketing for com- facilities viz., us, single issue before The pany. Bart While New York met 623,601 “ob- No. appellant’s advertising Schwartz, promoter meaning fraudulently” within the tained specialist piece in the over-the-counter (15 Act 14(c) Lanham of Sec. goods trade, whom he interested 1064(c), 1064(c), U.S.C.A. § 15. U.S.C. fabrics, chiefly made those Italian textile against factual be resolved must background wholly As a result or in of “fiocco.” case as revealed meeting agreement an was reach- of this before us. the record ed, International and White and Bart proceeding first of present is the The Ltd., incorporated Textiles, under the To under- this court. its reach kind Later, White and of New York. laws situation the fact stand together they, decided that begin necessary with it is is based (one partners) Zecchin of White’s with George Textile White activities (bookkeeper Schwartz), Rudolph for early City during the Company in Kansas Italy to secure franchises visit should company had contracts with This 1950’s. During the Italian manufacturers. and at textile manufacturers some Italian Italy trip in October engaged in the business time was party numerous Italian manufac- visited Italy. importing fabrics from exclusive, a number of and secured turers three-year in this franchises for the of chief interest Western they there, Hemisphere. While called “fiocco” in ordered were those business provisions * pursuant Judge O’Connell, for Sec- Senior District States United Pennsylvania, 294(d), Title 28 U.S.C. District tion Eastern place participate Judge designated Subsequently, samples appellant four instituted fab- amounts of substantial reg- infringement shipped more suits based rics made of “fioceo”which istration. soon thereafter. States, returning United After question but that the There is no White, Schwartz severed relations descriptive of Italian “fiocco” is word organized International Bart Schwartz “spun rayon” subject to such is herein, Textiles, Ltd., general descriptive word rule corporation
had this substituted regis foreign language cannot be Textiles, Bart and White International as a trade tered United States existing Ltd., in all then franchises *4 product. mark for In the described See the Italian manufacturers. 998, Paper Mills, re Northern 64 F.2d subsequently 1109, rela- Schwartz severed 20 CCPA and cases cited. there proceeded without tions with Zecchin and This fact is of no to the Fed assistance promotion here, either in White or Zecchin the eral for Con Trade Commission gress im- grounds of business under Italian textile specifically the limited the During port upon may franchises. the latter of seek cancellation early appellant registration and of 1954 samples received to those in listed specified (c) (d) of fabrics of subsections 14 Section (15 1064(c) amounts of “fiocco” and Schwartz corre- the Lanham Act U.S.C. § sponded producers d). (d), 1064(c, with the Italian con- 15 Fed U.S.C.A. The § cerning problem accordingly, the has, of “whether eral Trade Commission yarn un- made of can be sold as petition Fiocco asserted as “Ground One” of its guaranteed conditionally registration: washable.” to cancel the During period 1954 un- from October “ * ** registration that said May 1955, shipping til documents and let- fraudulently was obtained in that by appellant ters received composition to the refer at, prior to, appli- the time that imported fabrics in registra- cation for was made said terms of their “fiocco”content. registrant tion, the was not the own- appellant 20, 1955, On June filed its meaning er the mark within the register application to the word “Fiocco” 1(a) (1) of Section Trade- piece cotton, for rayon, fabrics in “textile mark Act of 1946 U.S.C.A. [15 § synthetic fibers and mixtures registrant 1051(a) (1)] and the thereof,” granting which resulted in the persons, firms, knew that other cor- registration 623,601, No. here in issue. porations or associations had the right using to use and were the mark registration Shortly after sought registered contrary to be registration granted, appellant filed the the statement made and filed Bureau, with the United States Customs registrant required by Section successfully stopped for time 1(a) (1) of said Act of Trademark importation of fabrics made of “fiocco.” * * *” 1946; A “tear sheet” service retained to advertising However, present proceed on of “fiocco” fabrics check ing, and information thus others secured Federal Trade Commission can appellant’s attorneys by showing regis only prevail was transmitted that the infringement large fraudulently” notices sent tration “was who obtained meaning to those in numbers the trade who had within the of this term as used fabrics, 14(c) Act, “fioceo” and two advertised suits Section Lanham su infringement pra. petition of the trademark for “Fioc- The for cancellation is alleged point, misrepre At co” instituted. fraudulent based registrant’s pe- Trade Commission Federal filed the sentations declara sworn ownership for tition cancellation here issue. tion to its of the mark and “sample,” business, according testimony George ranged in this White, 1. A yards yards. up 5 or 40 obligation mark. Lanham rights which the of others as to the imposes peti- applicant is that he Act on an present cancellation sustain To knowingly will no’t inaccurate 14(c) Lanham make of the tion under knowingly misleading at the prove that statements Act, it is sufficient registration forming part verified application declaration for time registration. registrant had the for others knew using right the word and were to use withholding in The mere product. name “fiocco” as the meaning formation as to the Ital ian word “fiocco” fraudulent is not such a Trial The Trademark withholding of information to warrant granting petition can- Board in Nevertheless, cancellation of the mark. USPQ 99), deci- (121 based cellation sion, despite holding to us that it is clear ground part, at least fraudu “was obtained from the appellant had withheld lently” meaning within the of Section e., fact, Bart i. a material Office 14(c) of the Lanham Act because signing the the time of misrepresentation in the declaration con on behalf sworn statement *5 cerning appellant what knew to be the Ital- “fiocco”was an the word that knew rights of others to use the word “fiocco.” rayon and to mean ian word used evidence, The both direct and circum- withholding by information such that stantial, establishes to our satisfaction registration fraudu- “was obtained the May 18, 1955, that Schwartz on at the challenges lently.” Appellant this here regis- time he verified the for complied holding fully it and asserts that appellant’s tration of “Fiocco” as trade- statutory requirements includ- with the right mark that others had to knew the signing ing of the verified declaration the use this word in “commerce” for textile by required statement the His fabrics. statement in the declaration 1(a) (1) Act. of the Lanham misrepresentation is a of fact as distin- position, appellant support as- In guished expression from the mere anof nothing in the Lanham Act re- serts that quires opinion. regis- applicant an for trademark signed Bart Schwartz the verified dec- tration to disclose information laration on behalf of to induce held have been disclosed. the board should grant registra- the Patent Officeto position the Trademark The misrepresenta- tion in reliance in and is fallacious Trial Board tion of fact. From the record as a whole assumption that it is based on the that ap- clear to us that as it seems pellant’s registrant “duty” to had a disclose acting good president not was signed that the Italian word “fioc Office respect in this at time he faith authority staple rayon. co” meant No From the declaration. what we have by proposition. is cited Any “duty” for this found in the record it seems clear that board knowledge by applicant possessed for of facts which owed an he registration contrary out of to the statement made in must arise was statutory requirements Lan the declaration. Act, particularly ham those found in Sec good acting in faith who has been One (1). 1(a) requires tion This section would, as to an essential fact it mistaken merely registration that an for us, to wish to correct such mis- seems verify person, a statement that “no other was called his attention. take when it corporation, firm, association, or significant, therefore, it that think We belief, best his acting Schwartz, when call- so instead of right testify proceed- to use such in this mark commerce ei a witness to ed as ing, history ther in the identical or fanciful form thereof concocted such a might “developed” near such resemblance thereto the mark that we as how he give be calculated to credence. deceive.” are unable to shown declaration was because the trademark The extent of this fabrication sought testi- for for He and not in fabrics Schwartz. Italy trip materials from fied at such fabrics that the end of admitting knowledge made. with an While discussed October of he now by in Milan de- use word “fiocco” others associate breakfast designate “gimmick” sirability finding fibers fiber fabrics, appellant which would content of would textile and fashion world justify Italy here “promote made in the dramatize statement ground engaged declaration masses.” this discus- While sion, others of “fiocco” as he testified he attracted the use wording Kellogg’s a trademark for Italian box of textile fabrics. on a corn flakes and “Fiocchi di noted Gran- phrase The “textile fabrics” as used in (Italian equivalent oturco” of corn registration is somewhat redundant flakes), his associate that he told toas woven fabrics in that such they study respell “must how to are “textiles.” Webster’s New Interna- quick fast, name where it’s a name and Dictionary, (1949) tional Second Edition meaning.” According his will have testimony, textile, noun, defines “that which stayed hours, up for and at he is, may woven; a woven fabric or morning four he woke o’clock weaving" (emphasis a material ed). add- got “Lou, it” and told him I’ve associate granted covers —and showed the word “fiocco.” him “textile piece cotton, fabrics in the synthetic rayon, fibers mixtures We take the same view of this testi- significant We think thereof.” it is mony expressed so well *6 testified Schwartz the mark “fiocco” is Trial and Board: Trademark not used on cotton materials that it is credulity to “It taxes believe that only on used materials which contain self-styled Schwartz, Mr. “fiocco”or which are “fiocco.” 100% man, promotion would not have seen “wool,” “cotton,” Words such as or heard of the word “fiocco” in at “rayon” long designate have been used to rayon of least some textile mills both the fiber and the textile fabrics Italy when has usage in the term been in replete made therefrom. The record is long common there by others, prior with instances of use to spun staple to or differentiate short alleged by appellant, that of the word ray- rayon from filament continuous “fiocco” as name of the material from credulity ; it taxes even more on and which a textile fabric woven. The seeing the to that words believe from examples contains record also numerous di on a box “Fiocchi Granoturco” by of the use others the word “fiocco” Schwartz, corn flakes who Mr. designate to the fiber content various Italian, independently speaks ar- no prior appellant’s textile fabrics to assert- at the word “Fiocco” for rived use adoption ed of this word as its trade- rayon spun on or sta- as ple mark. rayon textile fabrics —a word clearly The record also that establishes long been in and common which has knowledge had Bart Schwartz of this use Italy usage to mean in short “fiocco” the word others at the rayon.” signed presi- time he declaration as are unable reconcile We to this fabri- and on behalf dent of At testimony presented in the here cation meeting the first between Schwartz and protestations good appellant’s George inWhite White’s hotel room in making faith, in the statements on which August in New York White dis- registration was based. played imported samples fabric Schwartz, samples appel- It seems be the essence Crandall and which in- argument many rights that lant’s here cluded which were fabrics marked misrepresented others were not in to show their “fiocco” content. White
Q71 producer carefully meaning of the each examined-' were explained the that time ap- and the In “fiocco” content noted. some present record word, on the which instances, both. there were discussions with pears unknown been then have tes- manufacturers the end that While Crandall and Schwartz. “fiocco” should timony as to subse- content of the fabrics us not clear before predominate have that of materials meetings, appears to over other quent there meetings sufficiently entry to allow of the fabrics between other been a series of in the United rather States and White. Schwartz might than as quire payment re- fabrics White, that testified as witness called higher of a tariff rate. made imported samples fabrics he had clear, “always therefore, prior It to the Italy he had said Schwartz, president date which de- which were fiocco” and known as signed appellant corporation, He the decla- him “fiocco.” scribed sales to forming ration first when Schwartz testified also that registration, for trademark edge had knowl- he hotel New to his room came prior samples others both York he showed Schwartz brought Italy and in the States United had been fabrics which Italian identify City. “fiocco"to content word fiber Kansas White’s from samples of the textile showed which contained the fabric yarn. fiocco is as fol- word “fiocco” when so “fiocco” marked Schwartz were designates used the textile fiber lows: wool, way cotton, same flax oth- “Q48. Now, any of these did being identify er names these fibers as you samples had and showed material which such textile fab- fiocco? include Mr. Bart Schwartz rics are made. im- we This did, Yes, it sir. A. pute corporate applicant as its re- any “Q49. fioccomarked on Was sponsibility misrepre- for the factual samples? of them A. Some sentation made dec- marked ‘fiocco.’ laration. “Q50. way fiocco In what *7 conclude, therefore, We that the state- right A. It was marked marked? ment in the declaration sworn to edge similar to what the of cloth on person, firm, “no Schwartz that cor- right got Dell’Aqua has there. association, poration or to best the of point- “Mr. The witness Radnor: right belief, and has the to Exhibit ing R. Petitioner’s such trade-mark in commerce “Q51. they marked in Were the lawfully regulated by Congress may be appears on Petitioner's that manner form either in the identical thereof or in Yes, A. sir. As is. R? At might Exhibit near resemblance thereto as they marked on that time weren’t calculated to deceive” be was executed edge selvage. at the of Just the the despite information factual con- the 2 like that.” piece of cloth. Just trary find which we from the evidence possessed that time. produc- During the visit to the Italian case, Schwartz with in October the the circumstances ers Under of party the visited nu- such a false other members of find that statement of fact we holding supports and the fabrics manufacturers the declaration merous n of the deposition George Appellee’s motion to correct diminution over 2. White n “petitioner’s objection.” appellant’s In include view of record to the petition B,” objection, fore we denied the and referred the are Exhibit portion testimony, op going the the was White which left by appellant among posed reason, that he showed for the establishes samples 'others, “appellee-petitioner’s Ex fabrics which included “fiocco” that competent, of which marked “fiocco1'— ‘B’ relevant some hibit “right edge proceedings probative the of cloth.” be on evidence part though low, it was introduced registration disagree However, in issue “was ob- fiber if that so.1 I meaning fraudulently” within the ma- tained with the ultimate conclusion of the jority 14(c) the Lanham Act and a court Section because believe that when I swearing guilty falsely finds to a that it should be cancelled. one document, precisely very it must set forth re The issue thus far discussed particular supports evidence which solely peti lates One” “Ground charge. registration. tion to cancel the “Ground majority points specific petition for cancellation is evi out no Two” alleged descriptiveness of dence which find on the can be the based basis of ing falsely in con the mark but has not been considered Schwartz swore concerning ground nection with does not state for cancel his declaration can Fed trademark at court lation which be asserted issue finding must Trade in a do to eral Commission cancellation sustain its proceeding under 14 of Schwartz obtained fraud the Lan the trademark ulently. Act. ham Schwartz, behalf
We find that the additional mat of Bart Schwartz Textiles, Ltd., certified to court as a International ter stated reasonably necessary corporation, record that said proper “ determination raised issues * * * adopted is us- Therefore, assignment errors. ing the trade-mark shown printing such additional ma costs of accompanying drawing for Textile against appellant. taxed terial are piece cotton, rayon, fabrics in the forth, For the set reasons herein synthetic fibers and mixtures there- Ap- Trial of the Trademark decision of, 42, Knitted, in Class netted peal Board is affirmed. fabrics, and substitutes there- for, presents speci-
Affirmed.
herewith five
showing
[(or facsimiles)],
mens
Judge
WORLEY,
(dissenting).
Chief
actually
trade-mark as
con-
used in
goods,
nection
my
with such
the trade-
entirely
There is
too much doubt
being applied
mark
to labels
fairly
affixed
supports
that the
mind
majority
record
goods,
requests
“was
that the
view
registered
same be
in the United
fraudulently”
my
within
under-
obtained
Principal
Patent Officeon
14(c).
States
standing
would re-
of Section
I
Register in accordance with the Act
verse.
July 5,
1946.
*8
Judge (dissenting).
MARTIN,
“The trade-mark was first used on
agree
majority
goods
May
that
specified
2,
with the
it was
the
I
on
goods
incumbent
to inform
Schwartz
and first
on
used
said
in com-
among
states,
that “Fiocco” was the
Office
merce
the
the several
rayon
spun
lawfully
regulated by
describe
may
word used to
which
Italian
be
may
Although
staple rayon
raion,”
the record
this case
is
1.
“fiocco
the
by
equivalent
staple
yarn
is
indicate that
“fiocco”
used
the
Italian
industry
spun
ap-
to
Italian
describe
is “filato di fiocco raion.”
It
is
staple rayon fibers, according
parent,
therefore,
or
Ma
to
insofar
dic-
as these
Dictionary”
rolli,
(English-
concerned,
“Technical
tionaries are
“fiocco” means
Italian,
Italian-English, Eirenze, 1957),
staple
used in
when
the textile sense.
industry
the Italian textile
uses “fiocco”
2. “Trade-mark.
The term ‘trade-mark’
floccus, flock,
Staple
any word, name, symbol,
mean
or
to
when re
includes
or de
ferring
any
adopt
to material
as
such
wool. Fur
vice or
combination thereof
ther, according Denti,
by
to
“Technical Dic
ed and used
a manufacturer or mer
tionary” (Italian-English, English-Italian,
identify
goods
chant
guish
to
his
and distin
Milan, 1955),
referring
textiles,
when
to
them from those manufactured or
equivalent
by
(Trade-Mark
the Italian
sold
others.”
Act of
fiber
fiocco,”
equivalent
45,
“fibra
1127.)
Italian
the
§
15 U.S.C.A. §
concerning
[Empha-
declaration
the use
May 2,1955.”
Congress on
noted
word
a trademark.
It should be
mine.]
sis
using
company
the
declared his
declared:
He
trademark
that
for textile
being duly
Schwartz,
B.
“Bart
company
his
trade-
is the owner
the
says
he is
that
sworn, deposes and
person,
mark
or
and that
firm
no other
In-
Bart
President
the
corporation,
the best of his
appli-
Textiles,
Ltd.
ternational
right
or belief
has “the
use such
foregoing state-
named
cant
ment,
[Emphasis
trademark.”
mine.]
cor-
said
he believes
majority
It seems
if
to me that
trade-
poration is the owner
opinion
logical
is carried to its
conclusion
in commerce
use
which
mark
among
many who
applications
file or have filed
that no
states
several
2(f)
Act,
under section
of the Lanham
corporation or as-
firm,
person,
registra-
1052(f),
15 U.S.C.A.
for the
§
knowl-
his
sociation,
best of
merely descriptive
tion of
words as
right
belief,
to use
edge
has
subject
charge
trademarks could
be
in commerce
trade-mark
such
though
only
of fraud even
evidence
regulated
lawfully
Con-
may
be
offered is that others have
the words
used
form
identical
gress either in the
descriptively which fact was known to
resemblance
near
or
thereof
registrants.
the would-be
might
to de-
calculated
be
thereto
ceive,
require
To
openly
one who has
used
drawing
descrip-
word as a
purpose
truly represent
trade-mark
tion
sought
identifying
goods
for a number of
registered,
years to
that because
know
others have
facsimiles)]
[(or
show
specimens
descriptively
subject
used it
charge
he is
to a
actually used in
trade-mark as
registra-
of fraud if he obtains
goods, and that
with the
connection
tion,
establishing
precedent
would be
statement
set
forth
facts
will
cause undue restraint or hard-
[Emphasis mine.]
are true.”
ship
past, present
appli-
and future
descrip-
Regardless
question of
contemplated
cants not
or warranted
imported
pertains
tiveness
provisions
Lanham
Act.
containing the
or fabric
fiber
Italian
example,
recently
For
court
this
may
fiber,
one
conclusions to which
or the
involving
had before it
case
facts
knowledge of the
to Schwartz’s
come as
might
wherein an
have been
descriptive
in a
of the word
others
charged
fraudulently obtaining
any
majority
manner,
fails to cite
regis-
if
mark had
specific
which established that
tered and
involved
the case
cancellation
using
any person
corporation was
or
opposition proceedings
than
rather
under
identify
as a trademark
“Fiocco”
opinion.
majority
case, ap-
In that
origin
or
of textiles
source
using
plicant,
declaration similar to that
had knowl-
fiber or that Schwartz
bar,
register
endeavored to
“Power
any person
corporation
edge that
woodworking
Shop” as its trademark for
using
“Fiocco” as a trademark for
*9
saws,
corporation
another
whereas
had
yarn
rayon or textiles made of that
using
descriptively
been
the same words
the time the declaration
made.
years
many
goods
type
for
on the same
“Shopsmith.”3
I do
believe
were trademarked
Although
Schwartz’s
“Fiocco”
there was
direct
no
evidence in
rayon
spun
applicant’s
used
describe
tex-
the record
that case that
containing
descriptive
tiles
can
aware
be the officers were
charge
involving
corporation,
for a
of fraud
basis
a use
view
DeWalt,
(Pennsylvania Corp.),
Magna
Corporation,
3.
Inc.
Tool
De-
Power
Oust. &
Walt,
(Delaware Corp.),
(Assignee
Pat.App.,
Inc.
knowledge. charge circumstances, Under those obtaining registra- fraudulently just applicable tion would DeWalt it at bar. case as the case applies course, Of believe that it do not I situation, appears in either me but logical ma- this is result of the
jority opinion. C., Hatfield, Washington, Dos T. D.
Porter, Russell, Boston, Mass. Chittick & (Robert Russell, Mass., Westwood, B. counsel), appellant. for Moore, Washington, C., Clarence D. W. (George C., Roeming, Washington, C. D. counsel), Pat- Commissioner of ents. WORLEY, Judge, Before Chief SMITH,
i8 CCPA Application H. J. SEILER CO. RICH, MARTIN, Associate Appeal No. 6619. Judge Judges, H. WILLIAM KIRKPATRICK.1 Court Customs United States Appeals. and Patent 5,May 1961. Judge. KIRKPATRICK, appeal
This is an the decision Trademark Trial Board affirming regis- refusal examiner’s Co., appellant, tration to the H. J. Seiler “Seiler’s,” script, of the mark as a catering service mark for re- food. The registra- fusal was the basis of the script by tion of “Seiler’s” also Karl Philadelphia Seiler & Sons for smoked bolog- namely, bacon, and cured meats— na, beef, butts, ham, dried boneless lunch- roll, loaf, pork roll, sausage, eon meat scrapple. appears It from menu distributed aat flower show in Boston that, and offered in evidence addition catering business, it sells food example, 4. For almost four million istration cir- the same words as a trade- descriptive culars use of mark. *10 Shop” Judge “Power distributed 1. United States Senior District corporation pro- Pennsylvania its dealers and the Eastern District designated spective purchasers competitive participate place of its mer- during 3%-year period Judge provisions pursuant O’Connell, chandise before attempted reg- 294(d), obtain of Section Title 28 U.S.C.