In 1897 thе assignor and predecessor in interest of the Patton Paint Company registered as a trademark for its paints a serrated representation of the sun, hearing the words “Patton’s Sun-Proof Paints,” the essеntial parts of which mark were declared.to be the arbitrarily selected word “Sun-Proof” and a conventionalized picture of the sun. In 1915 the company registered in the Patent Office, as a trade-mark for its ready mixed paints and painters’ materials, a face in a serrated circle, from the upper and low-. er part of which comet-like rays or streamers projected.
The Sunset Paint Company, of Los Angeles, on the 27th of January, 1920, applied for registration of the word “Sun-Glo,” used by it from 1915 аs a trade-mark for its house faints, wall paints, painters’ mate* rials, and floor yarnishes. To that application the Patton Paint Company presented its opposition, to which answer was made, denying the material allegations thereof, and averring as an affirmative defense that in form, apрearance, and meaning the trade-mark name “Sun-Glo” so differed from that of the opposеr as not to mislead or confuse the
The Examiner of Interferences held that the applicant, the Sunset Paint Company, was not entitled to registration. On appeal that deсision was reversed by the First Assistant Commissioner of Patents, and the opposition of the Patton Paint Company was dismissed. From the decision of the Assistant Commissioner, an appeal was taken by the Patton Pаint Company to this court, and in support of that appeal it is contended that the word “Sun” is a very imрortant feature of the applicant’s trade-mark name and that, while the word “Glo” is not similar to the word “Proof” in appellant’s trade-name, there is such similarity in appearance and sound bеtween “Sun-Proof” and “SunGlo” that it would cause goods marked “Sun-Glo” to be mistaken for those of appellant.
We cannot agree with that contention. The purpose of a trademark is to indicаte, either by itself or by association, the origin or ownership of the merchandise to which it is attaсhed, and any one may attach to his wares or merchandise any symbol of device, not previously appropriated, which will distinguish his product or goods from those of the same general nature manufactured or sold by others. Galena-Signal Oil Co. v. W. P. Fuller & Co. (C. C.)
The word “Sun,” and representations of the sun, have been used so long by business men in the making of trade-mark names and devices, that neither one nor the other 'can be so exclusively appropriated by one manufacturer or tradesman as to wholly deny its use in any manner by others.
The displаy of the word “Sun,” and a representation of the sun, may be so distinctive and so unique as to warrant their appropriation; but that appropriation by itself does not exclude others from the use of a different, distinctive display of the word “Sun,” or of a distinctively different representation of the sun.
The word “Sun” is a feature of both marks; nevertheless, as it’ is a term which either party had a right to use for the purpose of making a compound word or designation, similarity of the marks so made, or the lack of it, must be determined by comparing the designations as entireties.
The idea sought to be conveyed to the mind of the purchaser by the trade-marks of the parties to this proceeding was that the paints оf the one glowed in the sun, or like the sun, and that the paints of the other were proof against the sun’s ravs. While the word “Sun” is common to both marks, the word “Glo” and the word “Proof” distinguish one combination from the other, and give an identifying character to the trade designation, which makes it unlikely that one mark could with thе exercise of ordinary care be mistaken for or confused with the other.
.[6] Of course, applicant’s mark might be so used with a device or representаtion of the sun as to amount to unfair competition; but, when that occurs, the appellant may avail himself of a remedy which may prove more effective than opposition to the registration of a trademark which he fears may be misused.
The decision appealed from is affirmed.