In re Canada Dry Ginger Ale, Inc.

87 F.2d 737 | C.C.P.A. | 1937

Garrett, Judge,

delivered the opinion of the court:

This is one of three associated cases in which appeals have been taken from decisions of the Commissioner of Patents affirming the decision of the examiner denying registration to appellant of certain marks for use as trade-marks upon maltless beverages sold as' soft drinks, the particular product most often referred to being ginger ale. The two other cases are In re Canada Dry Ginger Ale, Incorporated, Suit No. 3698, 24 C. C. P. A. (Patents) 804, 86 F. (2d) 830, decided December 21, 1936, and In re Canada Dry Ginger Ale, Incorporated, Suit No. 3696, 24 C. C. P. A. (Patents) 872, 87 F. (2d) 736, decided concurrently herewith.

Certain of the reasoning in the first of the above named cases is applicable here and, in the last of the cases the issue of this case is in effect determined. It is, therefore, unnecessary to enter upon any elaborate discussion here. The mark involved in this case comprises the words “Canada Dry” without their being associated with any map or other symbol or words. As recited in the case last named, supra, these words were disclaimed by appellant’s predecessor in registration No. 155,002. Upon the authority of the last named case, supray and the cases therein cited, it is here held that appellant, by reason of the disclaimer, is now estopped from securing registration of “Canada Dry,” and the decision of the Commissioner of Patents, so adjudging, is affirmed.