L. Otzen & Co. v. J. K. Armsby Co.

261 F. 1014 | D.C. Cir. | 1919

VAN ORSDEE, Associate Justice.

This is an appeal from the Commissioner of Patents in a trade-mark cancellation proceeding, in which the petitioner, E. Otzen & Co., is seeking the cancellation of the registration of the mark “From the Eand of Sunshine,” granted to the registrant March 31, 1914.

Petitioner’s mark consists of the words “Blossom and Sunshine,” associated with the representation of blossoms and a sunburst. Both marks are used on identical goods — dried fruits.

[¶] It is contended by petitioner that the word “Sunshine” is the dominating feature of each mark. Registrant, however, answers this by way of a counterclaim that petitioner’s registration of the mark in issue in 1906 was illegally secured, because of a prior use by registrant of a mark for fruits consisting of the word “Sunshine” alone. The use of this mark, registrant claims, was prior to any rights acquired by petitioner in its present mark. This would seem to foreclose conclusively petitioner’s right to demand cancellation of registrant’s mark on the ground that its dominating feature is the word “Sunshine,” since prior rights to the use of that word are in the registrant.

[2] This, however, does not decide the issue of probable confusion arising from the use of the marks in question. We agree with the tribunals below that there is nothing inherent in the appearance of the marks, or in the proof adduced by petitioner, to justify an adjudication that the marks are so similar as to be likely to lead to confusion in trade.

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

Affirmed.