Application of Wings Pub. Co., Patent Appeal No. 4963.

• Decision Date: 05 March 1945
• Docket Number: Patent Appeal No. 4963.
• Citation: 32 CCPA 926,148 F.2d 214
• Parties: Application of WINGS PUB. CO., Inc.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

32 CCPA 926, 148 F.2d 214 (1945)

Application of WINGS PUB. CO., Inc.

Patent Appeal No. 4963.

Court of Customs and Patent Appeals.

March 5, 1945.

Lester L. Sargent, of Washington, D. C., for appellant.

W. W. Cochran, of Washington, D. C. (R. F. Whitehead, of Washington, D. C., of counsel), for the Commissioner of Patents.

Before GARRETT, Presiding Judge, and BLAND, HATFIELD, JACKSON, and O'CONNELL, Associate Judges.

GARRETT, Presiding Judge.

This is an appeal from the decision of the Commissioner of Patents, speaking through an assistant commissioner (58 USPQ 428), affirming the decision of the Examiner of Trade-Marks, denying appellant's application, filed July 15, 1942, for the registration, as a trade-mark for a "Magazine of Cartoons," of the notation "Wings Comics," the latter word being disclaimed apart from the mark shown, and the former word being imposed upon a drawing representative of wings.

It appears that appellant's magazine is a monthly publication.

The rejection was based upon registration No. 231,542, under date of August 23, 1927, of the word "Wings," in the name of The Literary Guild of America, Inc., as a trade-mark for a "periodical publication."

We note from the record that appellant's application as originally filed described the publication upon which the mark was applied as a "periodical," and that after preliminary rejections by the examiner based upon the registration cited, and prior to his final rejection, the description was amended by striking "periodical" and substituting therefor "Magazine of Cartoons."

"Magazine," as the term is used here, is embraced within the meaning of the term "periodical," and, so far as this case is concerned, the terms are synonymous. In other words, both terms describe publications, and the fact that appellant chose to use "magazine" rather than "periodical" is of no moment in considering the question of whether appellant's publication has the same descriptive properties as the publication of the reference.

Appellant apparently makes no contention to the contrary, but contends, in effect, that the respective periodicals are not goods of the same descriptive properties because, notwithstanding the resemblance of the respective titles, the contents of the respective publications are of an entirely different nature.

In his decision affirming that of the Examiner of Trade-Marks, the commissioner said, inter alia:

"Registration has been refused in view of a prior registration to another of the word `Wings,' the registration stating the mark to be appropriated to a periodical publication. No particular type or character of periodical publication is specified in the registration.

"Applicant asserts the registrant of said registration applies the mark `Wings' to a magazine, published monthly by said registrant, devoted to information about newly published books, as shown by a copy of such publication which applicant filed at the hearing of this appeal. Applicant contends that in view of the differences in type and character between this publication and a magazine of cartoons and the differences between the mark of the registration and the mark applicant seeks to register, registration of applicant's mark should be granted. However, it seems to me that here the proper comparison is between the goods as named respectively in the application and in the registration. General Foods Corporation v. Casein Company of America, Inc., 108 F.2d 261, 27 C.C.P.A. 797, 515 O.G. 562, and since a magazine of cartoons is a...