Fishbeck Soap Co. v. Kleeno Manufacturing Co.

44 App. D.C. 6 | D.C. Cir. | 1915

Mr. Justice Kobb

delivered the opinion of the Court:

We think the goods of the respective parties are of the same descriptive properties within the meaning of the trademark act. American Stove Co. v. Detroit Stove Works, 31 App. D. C. 304; William Baker & Co. v. Harrison, 32 App. D. C. 272; Anglo-American Incandescent Light Co. v. General Electric Co. (43 App. D. C. 385.) In the case last cited it was ruled that the Patent Office properly refused to register the word “Mazda” as a trademark for incandescent gas mantles, when the word had already been appropriated and extensively used as a trademark for electric lamps. We said: “We think Congress, in using the words ‘descriptive properties,’ intended that they should be given their popular signification. Giving them that signification, no trademark may be registered when it is appropriated to goods of the same general qualities or characteristics as those of the goods to which another trademark already has been appropriated.” We directed attention to the fact that gas mantles and electric lamps were used for the same purposes, were usually sold by the same dealer, and frequently were used together on combination fixtures; that while no man of average intelligence would purchase a “Mazda” gas mantle in the belief that it was a “Mazda” gas lamp, the average person would believe that he was purchasing the product of the manufacturer of “Mazda” lamps. In the present case the notice of opposition sets forth that appellant’s “Kleeno” powder is used in washing various materials or articles and adapted for use in cleansing and polishing articles made of metal. In other words, that it is adapted for the same uses to which appellee’s polish is adapted. Appellant, therefore, legitimately may extend its trade, if it has not already done so, to include the specific uses to which appellee’s polish is adapted. Appellant, having established a trade reputation, ought not to have that reputation put in jeopardy by the registration to the appellee of the same mark for use upon goods so nearly alike, and the public likewise is entitled to protection.

The fact that the appellee has filed a disclaimer is of no consequence, for “one has no right to incorporate the mark of another as an essential feature of his mark. Such a practice would lead to no end of confusion and deprive the owner of a mark of the just protection which the law accords him.” Carmel Wine Co. v. California Winery, 38 App. D. C. 1. The disclaimer would slumber in the archives of the Patent Office while the mark would be used as registered. That is to say, the disclaimer would make no difference to the public. Such a subterfuge ought not to be permitted. Whether the firm name of appellee may be registered as a part of its mark depends upon how it is applied. Wm. A. Rogers v. International Silver Co. 34 App. D. C. 410.

The decision must be reversed. Reversed.