Application of Duvernoy & Sons, Inc.

• Decision Date: 09 April 1954
• Docket Number: Patent Appeals No. 6049.
• Parties: Application of DUVERNOY & SONS, Inc.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

101 USPQ 288, 212 F.2d 202 (1954)

Application of DUVERNOY & SONS, Inc.

Patent Appeals No. 6049.

United States Court of Customs and Patent Appeals.

April 9, 1954.

Hauff & Warland, and James M. Mason, Washington, D. C., for appellant.

E. L. Reynolds, Washington, D. C., for Commissioner of Patents.

Before O'CONNELL, JOHNSON, WORLEY, COLE, and JACKSON (retired), Judges.

COLE, Judge.

Having continuously since 1919 affixed the word expression "Consistently Superior" to its bakery products (bread, rolls, biscuits, cakes, pies and pastries), Duvernoy & Sons, Inc., the appellant herein, filed its application in 1947 to register that notation as a trade mark on the Principal Register of the United States Patent Office. Registrability of the alleged mark was claimed in accordance with the provisions of section 2(f) of the Trade Mark Act of 1946,¹ the appellant contending that the notation had become distinctive of its goods in commerce. In asserted proof of its claim to distinctiveness, the appellant submitted numerous affidavits and exhibits which, upon review by the Examiner of Trade Marks of the Patent Office, were held to be insufficient as a matter of law to establish such a claim. The examiner was further of the opinion that the notation sought to be registered was inherently incapable of distinguishing the appellant's goods or of indicating the source of origin thereof. The Examiner-in-Chief affirmed the position taken by the examiner, Ex parte Duvernoy & Sons, Inc., 96 U.S.P.Q. 174, and the appellant has appealed here from that decision.

It appears from the record that the notation "Consistently Superior" has been applied to the wrappers encasing the appellant's bakery products for a continuous period in excess of 30 years. Sales of the appellant's goods have been national in scope since 1935; prior thereto, distribution of such goods was on a relatively local basis. Advertising has been extensive and of wide circulation, varying in medium from attractive window displays to order forms, pamphlets, circulars, and magazine spreads. In all of its advertising efforts disclosed by the exhibits in the record the appellant has used the legend in question in close association with its trade name, Duvernoy & Sons, Inc., and in connection with the promotion and distribution of its products. Numerous trucks serve the customers of the appellant throughout the United States (approximately 80 of such trucks presently operate in the New York, New Jersey, and Connecticut areas) and the notation "Consistently Superior" has for many years been printed in a uniform position on the side panels of each of such trucks.

The affidavits of record offered in appellant's behalf conclusively establish that, insofar as the individual affiants are concerned, the term "Consistently Superior" is distinctive of the appellant's goods in commerce and is so recognized by the public and those in the trade. In other words, the affidavits are to the effect that "Consistently Superior" is a mark positively signifying the goods of the appellant and that such notation has become distinctive with respect thereto.

On the basis of the record before us, viewed in the light of the arguments presented and the law applicable thereto, we are of the opinion that "Consistently Superior" is not such a notation as warrants registration under the provisions of section 2(f), supra.

The appellant seemingly concedes that the term in question is, in a sense, laudatory or exclamatory and would require proof of the most convincing character to support a claim to distinctiveness. The affidavits relied upon to establish such distinctiveness, as applied to the...