49 F.2d 847 | C.C.P.A. | 1931
delivered the opinion of the court:
The appellant seeks to register the trade-mark “ Off the Cob,” to be used on canned corn.. The examiner of interferences denied registration on the ground that the mark was descriptive, and this decision, on appeal to the Commissioner of the United States Patent Office, was affirmed upon the same ground.
The argument is made here that the mark “ Off the Cob ” is not ■descriptive but only suggestive, and that it should therefore be registered.
The Supreme Court of the United States, in Warner & Co. v. Lilly & Co., 265 U. S. 526, 528, said: “A name which is merely descriptive of the ingredients, qualities, or characteristics of an Article of trade can not be appropriated as a trade-mark and the exclusive use of it afforded legal protection.” Applying this rule to the case at bar we have no doubt that the designation “ Off the Cob,” as applied to canned corn, is merely descriptive of the qualities or characteristics of the corn. If one were to apply the mark “ On the Cob ” to canned corn which had been cut from the cob before canning, it would plainly be misdescriptive. It is also true that to apply to it the designation “ Off the Cob ” is descriptive.
Seference is had to the following cases decided by this court: Chicago Pneumatic Tool Co. v. The Black & Decker Mfg. Co., 17 C. C. P. A. (Patents) 962, 39 F. (2d) 684, where we held the word M hycycle,” applied to electrical tools, to be descriptive; and In re Autographic Register Co., 17 C. C. P. A. (Patents) 1044, 39 F. (2d) 718, where we held the word “autographic,” applied to manifold registers and similar articles, to be descriptive; California Cyanide Co. v. American Cyanamid Co., 17 C. C. P. A. (Patents) 1198, 40 F. (2d) 1003, where we held the term “ calcyanide ” as a trade-mark for fumigants to be descriptive. Other similar cases where words have been held descriptive are: Larson Co. v. Wrigley, 253 Fed. 914, involving “Spearmint”; Ginter v. Kinney Tob. Co., 12 Fed. 782, involving “Straight Cut”; Sears d; Nichols Co. v. Brakeley, 38 App. D. C. 530, involving “Evergreen”; Kellogg T. C. Flake Co. v. Quaker Oats Co., 235 Fed. 657, involving “Toasted Corn Flakes”; Chapin-Sachs Co. v. Hendler C. Co., 231 Fed. 550, involving “The Yelvet Kind.” In these cases the subject of descriptiveness was thoroughly gone into and no necessity arises for a further discussion of that question.
The decision of the Commissioner of Patents is affirmed.
