24 F.2d 893 | D.C. Cir. | 1928
This is a trade-mark interference proceeding relating to the use of the word “Victor” as a trademark for furnaces.
On May 22, 1923, the Hall-Neal Furnace Company was granted registration of the word “Victor” as a trade-mark for coal, wood, gas and oil heating furnaces, and furnace parts. On March 1, 1924, the Victor Stove Company filed an application for the registration of the same word as a trademark for wood, coal, and gas stoves and ranges and furnaces. Testimony was taken by both parties.
The Examiner of Interferences found on the evidence that the Victor Company had used the word as a trade-mark for stoves and ranges since the year 1887, but not for furnaces until the year 1923, and that the Hall-Neal Company had not used the word as a trade-mark for furnaces prior to 1895. The Examiner held that stoves and ranges were goods of the same descriptive properties as furnaces, and that the Victor Company, being senior in use of the mark, should prevail in the interference and was entitled to the registration of the mark for furnaces, as applied for by it.
Upon appeal the Commissioner of Patents found that the Hall-Neal Company had been in undisputed possession of the right to use the word “Victor” as its trade-mark for hot-air furnaces from about 1895 to 1923; that the Victor Company during that period did not use the word as a trade-mark for furnaces, and that for many years the two companies sold their respective goods in substantially the same territory, each using the word “Victor” a's its trade-mark without a single instance of confusion in the-mind of the public as to the authorship or ownership of the respective goods; and that under these circumstances the Victor Company would be barred by reason of laches from the use of the word as a trade-mark for furnaces. The Commissioner, therefore, reversed the decision of the Examiner, and the present appeal followed.
In our opinion the decision of the Commissioner is right. For many years the Victor Company practically acquiesced in the
In France Milling Co. v. Washburn-Crosby Co. (C. C. A.) 7 F.(2d) 304, it is held: “Manufacturer of flour under Gold Medal trade-mark, who for many years acquiesced in use of same mark by manufacturer of pancake and buckwheat flour, and sold latter raw flour for use in manufacture, held to have lost by laches all right to enjoin such use of mark.”
We agree, accordingly, with the conclusion of the Commissioner that: “In view of the above, it is believed that the status quo of the parties as it existed for many years should not be disturbed, and that the Victor Stove Company should be denied the right to register the trade-mark ‘Victor’ for furnaces.”
The decision of the Commissioner of Patents is affirmed.