Application of Walker Process Equipment, Patent Appeal No. 6194.

• Decision Date: 15 May 1956
• Docket Number: Patent Appeal No. 6194.
• Citation: 233 F.2d 329,110 USPQ 41
• Parties: Application of WALKER PROCESS EQUIPMENT, Inc.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

110 USPQ 41, 233 F.2d 329 (1956)

Application of WALKER PROCESS EQUIPMENT, Inc.

Patent Appeal No. 6194.

United States Court of Customs and Patent Appeals.

May 15, 1956.

Louis Robertson, Chicago, Ill., for appellant.

Clarence W. Moore, Washington, D. C., for Commissioner of Patents.

Before JOHNSON, Acting Chief Judge, and WORLEY and JACKSON, retired Judges.

WORLEY, Judge.

This is an appeal from the decision of the Assistant Commissioner of Patents affirming the decision of the Trade-Mark Examiner refusing registration on the Principal Register of the words "Walker Process Equipment Inc." Registration was refused on the ground that the words, as used, do not constitute a trademark but are merely appellant's corporate name used in a trade name sense.

The record shows that appellant has used the words "Walker Process Equipment Inc." in association with the word "Proquip," the latter being displayed in larger letters. The specimens submitted also include "Aurora Illinois" or "Aurora Ill. U.S.A." The Assistant Commissioner observed that "It is clearly apparent and applicant does not deny that `Proquip' is a trade-mark for its products." There is nothing in the record to refute that statement and it will therefore be accepted as accurate.

The issue is whether the use of the words "Walker Process Equipment Inc." in the described manner constitutes use as a trade-mark, or, as held by the Patent Office tribunals, the words are merely a trade name used as such. The distinction between trade-marks and trade names is not always clear. As pointed out by the Supreme Court in American Steel Foundries v. Robertson, 269 U.S. 372, 46 S.Ct. 160, 70 L.Ed. 317, the two terms may sometimes overlap, but, generally speaking, a trade-mark is applicable to a vendible commodity and a trade name to a business. In that decision, the Court stated that a corporate name seems to fall more appropriately into the class of trade names.

The distinction between trade-marks and trade names was considered by this court in In re Lyndale Farm, 186 F.2d 723, 726, 38 C.C.P.A., Patents, 825. That case involved the words "Lyndale Farm," which had been affixed by means of tags, to crates in which cattle were shipped. The tags also bore the words "Floydada, Texas," that being the location of the farm. This court said:

"Trade-marks and trade names are distinct legal concepts within the ambit of the law of unfair competition. A trade-mark is fanciful and distinctive, arbitrary and unique. A trade name may be descriptive, generic, geographic, common in a trade sense, personal, firm, or corporate. A trade-mark\'s function is to identify and distinguish a product, whereas a trade name\'s function is to identify and distinguish a business."

It was further noted that the Lanham Act, Trade-Mark Act of 1946, 15 U.S. C.A. § 1051 et seq., contains no provision permitting registration of trade names, as such, on the Principal Register, although section 2(f) "would permit inter alia a trade name which has become distinctive of applicant's goods in commerce to be registered on the principal register upon a showing of adequate proof of distinctiveness", but that the Lyndale application was not filed under the provisions of that section. (Italics quoted.)

It is emphasized by appellant here that the decision in the Lyndale Farm case is based, at least in part, on the fact that the tags bearing the words "Lyndale Farm" were not attached to the goods (cattle), but to the crates in which they were shipped and from which it was presumed they were removed before being sold. In that respect the Lyndale Farm case differs from the instant one, since the words "Walker Process Equipment Inc." are applied directly to appellant's goods. However, the Lyndale Farm decision does not hold that a trade name ipso facto becomes a trade-mark when it is applied to merchandise. That is but one of the factors to be considered in determining whether there has been a trade-mark use.

There can be no doubt that the words "Walker Process Equipment Inc." constitute a trade name, but that, in itself, would not necessarily preclude them from being a trade-mark as well since, as observed in the American Steel Founddries case, the name of a corporation may be a trade-mark, a trade name, or both.

As defined in the Lanham Act, "The term `trade-mark' includes any word, name, symbol, or device or any combination thereof adopted and used by a manufacturer or merchant to identify his goods and distinguish them from those manufactured and sold by others." 15 U.S.C.A. § 1127.

It seems obvious, as was pointed out by the Assistant Commissioner, that the words "Walker Process Equipment Inc." were adopted primarily for the purpose of identifying the applicant and distinguishing it from other producers of goods rather...