THEO. WEISS & CO. v. Stuart, Keith & Co.

• Decision Date: 02 March 1925
• Docket Number: No. 1690.,1690.
• Parties: THEO. WEISS & CO., Inc., v. STUART, KEITH & CO., Inc.
• Court: U.S. Court of Appeals — District of Columbia Circuit

55 App. DC 249, 4 F.2d 442 (1925)

THEO. WEISS & CO., Inc., v. STUART, KEITH & CO., Inc.

No. 1690.

Court of Appeals of District of Columbia.

Submitted January 19, 1925.

Decided March 2, 1925.

Cyrus Kehr, of Washington, D. C., for appellant.

W. F. Hall, of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, ROBB, Associate Justice, and BARBER, Judge of the United States Court of Customs Appeals.

ROBB, Associate Justice.

Appeal from a Patent Office decision in a trade-mark interference proceeding in which priority and the right of registration were awarded the junior party, appellee here.

The appellee, in its verified petition for registration, alleged that it had continuously used the mark for which it sought registration since September 7, 1910, and that it had applied the mark "directly to the goods by printing or stamping the same thereon," and also had applied or affixed it to the goods by placing thereon, or on the package containing them, printed labels on which the mark was shown. We here reproduce the sample of the mark filed with the Patent Office:

To substantiate the averments of its petition, the testimony of four witnesses was taken by appellee. The first witness, its president, testified that the corporation manufactured overalls for men and boys, and he thereupon produced a sample of the goods of the latter class. He then testified in part as follows:

"Q. 7. Do you distinguish this garment by any means to designate it as being different from your other line of goods? A. We do.

"Q. 8. How? A. With a ticket and with the wording `Little Man's Overall Just Like Dad's.'

"Q. 9. Will you produce such a ticket referred to in your last answer? A. We will."

We here reproduce the ticket referred to by this witness, which was marked Exhibit 2:

The witness then testified that garments of this style were shipped into various states of the Union, and that appellee "got up in 1912 the ticket which is now attached to the garment, and which bears the phrase, `Just Like Dad's.'" He then was asked, "I note, from these records to which you have referred, that reference is made to garments bearing the `Little Man's Ticket.' Is this the garment referred to?" He replied, "It is," and was asked, "Did these garments bear a ticket similar to that of Exhibit 2?" After he had replied, "They did," he was further asked, "Has the use of this ticket as Exhibit 2 on goods as Exhibit 1 been continuous by Stuart, Keith & Co., Inc., since the date set out in the production of these exhibits?" His response was, "It has." The testimony of the other witnesses did not differ materially from that of the first.

The foregoing testimony falls short of showing such trade-mark use of the "ticket" referred to by the witnesses as is contemplated by the registration statute. Hump Hairpin Co. v. De Long Co., 39 App. D. C. 484. But, even assuming such use, the position of appellee is not bettered, for it has sought the registration of a mark as to which the testimony shows no use whatever. In other words, one mark is claimed, and the use of another shown. The dominating features of the ticket produced clearly are the words "Little Man's Overall" and the representation of a boy or "Little Man." The phrase "Just Like Dad's" is nothing more than accessory, the attempt to register which, upon a showing of the composite mark, is directly in conflict with the ruling of this court in Planten v. Canton Pharmacy Co., 33 App. D. C. 268. In that case we said that a party might not segregate his trade-mark, "and, by registering...