Holland Food Corp. v. H-O Cereal Co.

11 F.2d 575 | D.C. Cir. | 1926

MARTIN, Chief Justice.

On July 28, 1920, the Holland Food Corporation applied for registration of the trade-mark “Hofood,” claiming continuous use of it since July 1, 1919, for dried fruits, wheat flour, rye flour, com flour, potato flour, tapioca flour, rolled oats, and olein. Registration was accordingly granted on July 19,1921.

In the month of April, 1923, the H-0 Cereal Company, Inc., applied for the cancellation of this registration, under section 13, Trade-Mark. Act of 1905 (Comp. St. § 9498), claiming prior use and registration of the trade-mark “H-O” for rolled oats, flour, and similar food products; the mark being frequently used by them in combination with the word “food” in labeling such goods, and alleging that the use by registration of tbe mark “Hofood” would confuse tbe public and greatly damage the petitioner.

The Examiner of Interferences found upon tbe 'evidence that tbe petitioner for many years continuously bad used its registered mark “H-O” on rolled oats, buckwheat and pancake flour, and other like products, and bad successfully advertised tbe mark at great expense. He held that tbe term “Hofood,” being plainly a composite word consisting of “Ho” and “Eood,” tbe former being equivalent to petitioner’s mark, would naturally suggest to tbe average purchaser that “H-0” food produets and “Hofood” products were of tbe same origin, thus misleading tbe public to tbe petitioner’s damage. In support of this -view tbe Examiner cited Talcum Puff Co. v. E. Burnham, 296 F. 1014, 54 App. D. C. 267; Nafziger v. Schulze Baking Co., 46 App. D. C. 292; Quaker City C. & C. Co. v. Kernan, 278 F. 592, 51 App. D. C. 283. Tbe Examiner accordingly sustained the application for cancellation, and recommended that tbe registration be canceled. Tbe Commissioner of Patents, reviewed tbe record upon appeal, and affirmed tbe decision of tbe Examiner. '

We do not find it necessary to discuss tbe evidence in detail, for in our opinion it is clear that tbe mark “Hofood” in effect consists of tbe petitioner’s registered mark “H-0” in combination with tbe word “Eood,” tbe petitioner being also entitled to use tbe word “Eood,” together with its mark, upon its food products, and accordingly that it is deceptively similar to tbe latter, and that it would be confusing to tbe public and damaging to tbe petitioner to have tbe respective marks used in commerce upon tbe same kind of goods.

Tbe decision of tbe Commissioner of Patents is therefore affirmed.