In re Gregg & Son

• Decision Date: 05 March 1928
• Docket Number: No. 1999.,1999.
• Citation: 24 F.2d 898,58 App. DC 70
• Parties: In re GREGG & SON, Inc.
• Court: U.S. Court of Appeals — District of Columbia Circuit

58 App. DC 70, 24 F.2d 898 (1928)

In re GREGG & SON, Inc.

No. 1999.

Court of Appeals of District of Columbia.

Submitted January 10, 1928.

Decided March 5, 1928.

A. M. Hood and W. P. Hahn, both of Indianapolis, Ind., for appellant.

T. A. Hostetler, of Washington, D. C., for Commissioner of Patents.

Before MARTIN, Chief Justice, VAN ORSDEL, Associate Justice, and SMITH, Judge of the United States Court of Customs Appeals.

VAN ORSDEL, Associate Justice.

This appeal is from the decision of the Commissioner of Patents, denying the application of appellant for the registration of a trade-mark on the ground of lack of trade-mark use.

It appears that appellant company is a service corporation carrying on the business of repairing, cleaning, renovating, and dyeing fabrics and furs. The mark sought to be registered is used by appellant company on labels attached to goods that have been cleaned or renovated, when the same are returned to the owners. Registration was refused, on the ground that the mark does not indicate either the origin or the ownership of the goods on which it is used. Clearly the goods do not originate with appellant company, neither is it the owner of the goods, since all that is done by appellant is the repairing, cleaning, renovating, or dyeing of the fabrics or furs, the origin and ownership of which are in the persons for whom appellant's services are engaged.

To entitle an applicant to the registration of a trade-mark, it must appear that the mark has been used on an article of commerce, and that it has been used in commerce. The mark must likewise possess a distinctive identifying characteristic of the article to which it is affixed, and must be used to indicate the origin or ownership of the article to which it is attached. Nims, in his work on Unfair Competition and Trade-Marks (2d Ed.) § 212, in defining who may acquire a trade-mark, says: "Not only a manufacturer of goods, but a merchant, distributor, jobber, bottler, or other person, who selects goods and markets them, or places them before the public, may adopt for use his own trade-mark. Hughes v. Alfred H. Smith Co. (D. C.) 205 F. 302."

In section 214 of the same work the author defines the manner in which a trade-mark may be acquired, as follows: "The trader must do three things in order to acquire a good title to a technical trade-mark: First, he must adopt a trade-mark open to appropriation; second, he must apply it or attach it physically to a vendible commodity;...