Postum Cereal Co v. California Fig Nut Co
| Citation | 272 U.S. 693,47 S.Ct. 284,71 L.Ed. 478 |
| Decision Date | 03 January 1927 |
| Docket Number | No. 22,22 |
| Parties | POSTUM CEREAL CO., Inc., v. CALIFORNIA FIG NUT CO |
| Court | United States Supreme Court |
Messrs. Edward S. Rogers and Frank F. Reed, both of Chicago, Ill., and Wm. J. Hughes, of Washington, D. C., for appellant.
[Argument of Counsel from pages 693-695 intentionally omitted] Mr. Chief Justice TAFT delivered the opinion of the Court.
The Postum Cereal Company and its predecessors in title have for years manufactured a cereal breakfast food to which they applied, as a trade-mark, the word 'Grape- Nuts,' for which they secured registrations under the Trade-Mark Registration Act of February 20, 1905 (33 Stat. 727, § 9 (Comp. St. § 9494)), and amendments. They filed a petition of opposition to the registration by the California Fig Nut Company of the trademark 'Fig Nuts' which that company had registered under the Act of March 19, 1920, § 1, par. b, 41 Stat. 533 (Comp. St. § 9516a).
Section 2 of the same act (Comp. St. § 9516b) provides that when any person shall deem himself injured by the registration of a trade-mark under the act, he may apply to the Commissioner of Patents to cancel it. Upon due notice to the registrant, a hearing is to be had before an examiner of interferences in the Patent Office, with an appeal to the Commissioner. The California Fig Nut Company, the registrant, filed an answer denying that the petitioner was injured and taking issue within the averments of its petition. The examiner of interferences held against the petitioner and recommended that the registration be not canceled. An appeal was taken to the Commissioner of Patents, who affirmed the holding of the examiner of interferences.
An appeal was then taken from the decision of the Commissioner to the Court of Appeals of the District of Columbia. That court held that, under the Act of March 19, 1920, 41 Stat. 533, there was no jurisdiction given to that court to hear an appeal from the Commissioner of Patents. This holding was in accordance with a previous decision of the same court in United States Compression Inner Tube Company v. Climax Rubber Company, 53 App. D. C. 370, 290 F. 345. Accordingly the appeal was dismissed. The present appeal to this court was allowed by the Court of Appeals.
The Trade-Mark Act of 1920, c. 104, 41 Stat. 533, is entitled:
'An act to give effect to certain provisions of the convention for the protection of trade-marks and commercial names, made and signed in the city of Buenos Aires, in the Argentine Republic, August 20, 1910, and for other purposes.'
The first section provides that the Commissioner of Patents shall keep a register of all trade-marks communicated to him by the international bureaus as provided for by the convention upon which a certain fee has been paid. Paragraph (b) of section 1 provides that all other trade-marks not registerable under the Act of February 20, 1905 (with certain exceptions not here relevant), but which have been in bona fide use for not less than one year in interstate or foreign commerce, upon or in connection with any goods of a proprietor upon which a fee of $10 has been paid to the Commissioner of Patents, may be registered under the act, provided that the trade-marks which are identical with the known trade-marks owned and used in interstate commerce by another, and appropriated to merchandise of the same descriptive properties as to be likely to cause confusion or mistake in the mind of the public or deceive purchasers, shall not be placed on the register.
The chief objection of the petitioner to the registration of 'Fig Nuts' as a trade-mark for a cereal breakfast food is that it is likely to cause confusion or mistake and deceive purchasers into thinking they are buying the petitioner's breakfast food marked and widely known as 'grape nuts.'
Section 6 of the Act of 1920 (Comp. St. § 9516f) adopts provisions of certain sections of the Act of February 20, 1905, 33 Stat. 728. But those sections do not include section 9 of the older act by which provision is made for an appeal from the decision of the Commissioner of Patents to the District Court of Appeals, and for this reason the District Court of Appeals dismissed the appeal. The contention of the appellant here is that section 9 of the act of 1905 does apply to the proceeding here taken under the act of 1920, and that the Court of Appeals in holding otherwise denied a right which the appellant here is entitled to have vindicated. It asks this court to reverse the dismissal by the District Court of Appeals and in effect enforce the jurisdiction of that court to entertain its appeal from the Commissioner of Patents.
The first difficulty the appellant has to meet is the question whether this court has jurisdiction to consider such an appeal. The argument the appellant makes is that this appeal was allowed July 1, 1924, to the judgment of dismissal by the Court of Appeals of April 7, 1924, that the Act of February 13, 1925 (43 Stat. 936, 941), section 250 of the Judicial Code, left the old section applicable to such pending appeal, that by the old section 250, any final judgment or decree of the Court of Appeals might be re-examined in this court upon error or appeal in cases in which the construction of any law of the United States is drawn in question by the defendant, that this appeal draws in question the construction of the Trade-Mark Act of 1920 given by the Court of Appeals, by which that court dismissed the appeal taken to it from the Commissioner of Patents, and that the dismissal from which this appeal was allowed was a final judgment under the cases of Shaffer v. Carter, 252 U. S. 37, 44, 40 S. Ct. 221, 64 L. Ed. 445, and Baldwin Co. v. Robertson, 265 U. S. 168, 44 S. Ct. 508, 68 L. Ed. 962. The case of Baldwin v. Howard, 256 U. S. 35, 41 S. Ct. 405, 65 L. Ed. 816, in which certiorari to this court from a similar trade-mark proceeding was denied is explained by the appellant as resting on the sole ground that the judgment below was not a final one.
We do not think this course of argument can be sustained. Assuming for the purposes of this discussion, that the District Court of Appeals was wrong in not holding that section 9 of the act of 1905 did apply to the Commissioner of Patents' decision under the Act of 1920, even so, an appeal cannot be taken to this court to remedy the error. The decision of the Court of Appeals under section 9 of the act of 1905 is not a judicial judgment. It is a mere administrative decision. It is merely an instruction to the Commissioner of Patents by a court which is made part of the machinery of the Patent Office for administrative purposes. In the exercise of such...
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