Steinreich v. Coca-Cola Co.

• Decision Date: 04 December 1933
• Docket Number: Patent Appeal No. 3182.
• Parties: STEINREICH v. COCA-COLA CO.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

67 F.2d 498 (1933)

STEINREICH v. COCA-COLA CO.

Patent Appeal No. 3182.

Court of Customs and Patent Appeals.

December 4, 1933.

Herbert J. Jacobi and William J. Jacobi, both of Washington, D. C., for appellant.

Harold Hirsch, Marion Smith, and Frank Troutman, all of Atlanta, Ga., and Thomas L. Mead, Jr., of Washington, D. C., for appellee.

Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges.

LENROOT, Associate Judge.

This is an appeal from a decision of the Commissioner of Patents, affirming a decision of the Examiner of Interferences, sustaining a notice of opposition of appellee, and holding that appellant, whose application was filed on July 15, 1929, was not entitled to the registration of the mark "Vera-Coca" for use upon a noncereal, nonalcoholic, maltless beverage, sold as a soft drink.

In its notice of opposition appellee alleged prior adoption and use, through its predecessor, continuously since about 1886, of the mark "Coca-Cola" upon a nonalcoholic beverage and syrup for making it, and claimed ownership of said mark and registration of the same in the United States Patent Office. It further alleged that the mark of appellant was applied to goods of the same descriptive properties as the mark of appellee, that the marks are confusingly similar, and that the registration of appellant's mark would be injurious to appellee.

The answer of appellant to said notice of opposition denied that there was confusing similarity in the marks of the parties.

Both parties took testimony. Both tribunals of the Patent Office found that the marks involved were confusingly similar, and sustained the opposition of appellee.

The Commissioner of Patents held that the goods to which the respective marks are applied are substantially identical in class and descriptive properties, and that appellee had used its mark for forty years before appellant entered the field, had expended large sums in advertising its goods under its mark, and had sold such goods in very great quantities throughout the United States. In view of these facts, which are undisputed in the record, the Commissioner further held that the question to be determined was confined to a comparison of the marks. Upon this question the Commissioner said:

"Both marks include the word `Coca'; the applicant places the notation `Vera' before the word and the opposer places the word `Cola' after the common word, and both parties separate their words by a hyphen. It is at least reasonable to suppose that customers in ordering goods of this kind might abbreviate the entire name or notation and if this were done the goods of the opposer and those of the applicant might well be called for by the word `Coca.' At any rate the goods are of the character to be ordered carelessly without much thought or consideration and it is deemed at least probable there would be some confusion of goods as well as of origin. Those familiar with the opposer's trade-mark and goods might be led to think, even if the difference in the trade-marks were noted, that the applicant's goods had their origin with the opposer; and that the latter was putting out a new kind of beverage. It is considered the applicant has approached too nearly opposer's trade-mark and should have, from the practically unlimited field before him, selected a mark as to which there could be no question of confusion.

"The decision of the examiner of trademark interferences sustaining the opposition and adjudging the applicant not entitled to the registration for which he has applied is affirmed."

We are in entire agreement with the foregoing conclusion of the Commissioner. Appellant challenges the statement of the Commissioner that the goods upon which the marks are applied are of the character to be ordered carelessly, without much thought or consideration.

The goods to which the marks of both parties are applied include syrups which are sold to proprietors of soda fountains and like dispensaries, and the drink of which such syrup is an ingredient is sold to the public. While it is no doubt true that dealers would not carelessly order the goods, the purchaser of such drinks at the soda fountain would not be apt to exercise care and precision in giving his order. As was said by the Circuit Court of Appeals, Sixth Circuit, in the case of Federal Trade Commission v. Good-Grape Co., 45 F.(2d) 70, 72, with respect to a soft drink of a different character: "* * * The average purchaser makes for himself only a casual if any examination of the real character of this five-cent drink. * * *"

We are also in agreement with the Commissioner that customers, in ordering goods of the kind here involved, might abbreviate the entire name or notation, and that, if this were done, the goods of appellant and appellee might well be called for by the word "Coca." Testimony introduced by appellant is to the effect that customers at soda fountains often order appellee's product "Coca-Cola" by ordering a "small coke" or a "large coke."

The testimony with respect to the adoption of the mark "Vera-Coca" by appellant supports our conclusion that the Commissioner committed no error in sustaining the opposition of appellee.

According to the testimony of appellant, he did not originate the name "Vera-Coca," but commenced to use it through one Harry J. Tober. His testimony upon this point is as follows:

"Q. Mr. Steinreich, did you originate the name Vera-Coca? A. Not me.

"Q. Who did? A. I don't know.

"Q. How did you happen to commence the use of the name? A. Through this fellow Tober.

"Q. Would you mind explaining how that came about? A. To be in a position where you want to tell something that is worth while — he just came into my office and used the telephone, and a little bottle dropped out of a package. I said: `What have you got there?' `I've got something that's worth while.' Then he told me what it was. He showed me a little book with the name Vera-Coca, and thinking it might be worth while I says: `O. K., it's a go with me.' Now, here's where the trouble started. He told me the name Vera-Coca was registered in Washington and I found out differently."

Appellant now claims that in April, 1929, after the visit of the said Tober, he (appellant) appropriated the mark "Vera-Coca" with the consent of said Tober, and thereupon, under the name of the Vera-Coca Company, proceeded to sell goods of the kind here involved, applying thereto the mark "Vera-Coca."

The booklet to which appellant apparently referred in his testimony above quoted was offered in evidence, and it appears in the record. The first...