McIlhenny Co. v. Trappey

277 F. 615 | D.C. Cir. | 1922

SMYTH, Chief Justice.

Trappey applied to the Patent Office to register a trade-mark for tabasco sauce, peppers in vinegar, extract of pepper, and ground pepper, in which occurs the word “Tabasco.” He alleged that he had used the mark, in the specific form shown in a drawing, since January, 1912, and that he presents with his application a drawing and five specimens of the mark. There are in the record only a diagram consisting of a large shield, within which is a smaller one bearing the word “Shield,” and two specimens on each of which are several words. In only one appears the word “Tabasco.”

Mcllhenny Company, claiming the right to the exclusive use of the word “Tabasco” as a trademark for pepper sauce, opposed the registration of the mark unless the word “Tabasco” was eliminated from it. The company alleges that it believes that the use of the words -“Tabasco Sauce” by Trappey is done in an effort “to commit tiie Patent Office to an apparent acceptance of the words * * * as a generic name for its possible effect in the suit now pending,” wherein the company is contending with Trappey for the exclusive right to use the word “Tabasco” as a trade-mark. .If this be not an allegation that the company will suffer damage in the event the opposition is not sustained, there is none.

[1] We decided in McIlhenny v. New Iberia E. of T. P. Co., 34 App. D. C. 430, that the word “Tabasco” was a geographical term, and therefore could not be exclusively appropriated by Mcllhenny’s Sons in vending pepper sauce. The company claims through the defeated party in that proceeding. We adhere to the decision there rendered.

[2] However, this holding does not prohibit the company from objecting to the registration of the word “Tabasco” for the benefit of another party, because the statute (33 Stat. 726, § 6 [Comp. St. § 9491]) says:

“Any person who believes he would be damaged by the registration of a mark may oppose the same.”

It is not necessary that the opposer should show a superior right to the mark. All that is required of him is a showing that he would probably be damaged, if registration was granted. Atlas Underwear Co. v. B. V. D. Co., 48 App. D. C. 425;

[3] If the company did not show this, its opposition was properly dismissed. Howard Co. v. Baldwin Co., 48 App. D. C. 437. As we have said above, the company’s only allegation with respect to damages is that the company believes that the application of Trappey is an effort to produce a condition which possibly may affect a suit in which the company and Trappey are adversaries. The company does not allege that any damage would result to it, or even that it believes that damage would result; nor does it state any facts from which damages might be inferred. We think the opposition is fatally defective in this respect. .

The decision of the Commissioner of Patents is affirmed.

Affirmed.