In re Alvah Bushnell Co., 261 F. 1013

In re Alvah Bushnell Co.

261 F. 1013 | D.C. Cir. | 1919

VAN ORSDFD, Associate Justice.

This appeal is from the decision of the Commissioner of Patents refusing registration of the word symbol “Safe T Seal” as a trade-mark for envelopes, wallets, letter files, jackets, etc.

[ 1 ] Counsel for the Commissioner discloses the existence of patent to D’Agostina, dated February 8, 1916, for safety envelopes, and also patent to Halloran, dated July 25, 1905, which is described as relating “to a safety seal for envelopes.” It must be assumed that the goods of the respective patentees are known to the trade as “safety envelopes,” or “safety seal envelopes.” This designation, having been established, by virtue of the patents, even if arbitrary, would not be available as a trade-mark for either of the patentees for goods of the same class as those patented. It follows that, if by their use the marks could not be registered as trade-marks by the persons first applying them to the patented articles, a stranger could not adopt either of them as a trade-mark for the same class of goods.

[2] Treating the mark independently, the test here is the impression which it would make upon the public. It is clear that the trade would identify the goods bearing the mark either as safety seal envelopes or safe seal envelopes. In either case the mark is descriptive of the goods, and comes within the prohibition of section 5 of the Trade-Mark Act of February 20, 1905 (33 Stat. 725, c. 592 [Comp. St. § 9490]).

*1014The decision of "the Commissioner of Patents is affirmed, and the clerk is directed to certify these proceedings as required by law. Affirmed,