California Cyanide Co. v. American Cyanamid Co.
Citation | 17 CCPA 1198,40 F.2d 1003 |
Decision Date | 28 May 1930 |
Docket Number | Patent Appeal No. 2315. |
Parties | CALIFORNIA CYANIDE CO. v. AMERICAN CYANAMID CO. |
Court | United States Court of Customs and Patent Appeals |
Pennie, Davis, Marvin & Edmonds, of New York City (Dean S. Edmonds, George J. Hesselman, and Ernest H. Merchant, all of New York City, and R. K. Stevens, of Washington, D. C., of counsel), for appellant.
H. S. Bierman, of New York City, for appellee.
Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges.
This is an appeal from the decision of the Commissioner of Patents reversing the decision of the Examiner of Interferences dismissing the notice of opposition of appellee and holding that appellant was entitled to the registration of the trade-mark "Calcyanide" for use on fumigants.
In its notice of opposition, appellee, the American Cyanamid Company, declared that it would be injured by the registration of appellant's trade-mark for the following reasons:
The case was submitted to the Examiner of Interferences upon an agreed statement of facts. It appears therefrom that the goods of the parties possess the same descriptive properties; that the words "calcium cyanide" have been used on its goods by appellee since 1921; that appellant has used the trade-mark "Calcyanide" on its goods since December, 1925; that the goods of the parties are sold and used in practically all parts of the United States; that "calcium cyanide" is a chemical compound; and that the fumigant of appellant "contains commercially pure calcium cyanide," whereas that of appellee "contains crude calcium cyanide."
We quote from the agreed statement of facts:
The sole question for determination is whether the term "calcyanide" is descriptive or merely suggestive of appellant's goods.
It is conceded that the words "calcium cyanide" used by appellee are descriptive, and that appellee is not the exclusive owner of those words for trade-mark purposes. If the term "Calcyanide" is descriptive, the opposition was properly sustained. If it is merely suggestive, appellant is entitled to registration of its mark.
The Examiner of Interferences held that the words "calcium cyanide" were purely descriptive of appellee's goods, that they did not perform the function of indicating origin, and that, as appellee was not the owner of the mark "Calcium Cyanide," it could not, under the statute, oppose the registration of appellant's mark "Calcyanide." The question of whether or not the mark "Calcyanide" was "descriptive" was not discussed in the decision.
On appeal, the Commissioner of Patents held that the opposer, appellee, had the legal right, if it could show that it would be damaged thereby, to oppose the registration of appellant's mark "Calcyanide," although, due to the fact that its mark "Calcium Cyanide" was descriptive, it (appellee) did not have the right to its exclusive use and was not the owner thereof. In support of his holding, the Commissioner of Patents cited the case of Touraine Co. v. F. B. Washburn & Co., 52 App. D. C. 356, 286 F. 1020, 1022, 1923 C. D. 174, and quoted the following from the decision of the Court of Appeals of the District of Columbia:
In holding that appellant's mark "Calcyanide" was descriptive, and therefore not registerable as a trade-mark, the Commissioner said:
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De Walt, Inc. v. Magna Power Tool Corporation, Patent Appeal No. 6638.
...or petitioner is one who has a sufficient interest in using the descriptive term in its business. California Cyanide Co. v. American Cyanamid Co., 40 F.2d 1003, 17 CCPA 1198 ("Calcyanide"), Model Brassiere Co., Inc., v. Bromley-Shepard Co., Inc., 49 F.2d 482, 18 CCPA 1294 ("ensemble"), Unit......
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Wilson v. Delaunay, Patent Appeal No. 6279.
...that the opposer establish that he would probably be damaged by the registration of an applicant's mark. California Cyanide Co. v. American Cyanamid Co., 40 F.2d 1003, 17 C.C.P.A., Patents, It is to be noted moreover that, although the exact terms of the agreements between appellee and his ......
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Vi-Jon Laboratories v. Lentheric, Patent Appeal No. 4659.
...necessary that appellee establish that it would probably be damaged by the registration of appellant's mark. California Cyanide Co. v. American Cyanamid Co., 40 F.2d 1003, 17 C.C.P.A., Patents, 1198; Trustees for Arch Preserver Shoe Patents v. James McCreery & Co., 49 F. 2d 1068, 18 C.C.P.A......
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J. Greenebaum Tanning Co. v. Respro, Inc., Patent Appeal No. 3894.
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