California Packing Corp. v. Halferty

• Decision Date: 07 January 1924
• Docket Number: 1609-1611.
• Parties: CALIFORNIA PACKING CORPORATION v. HALFERTY (three cases).
• Court: U.S. Court of Appeals — District of Columbia Circuit

295 F. 229

CALIFORNIA PACKING CORPORATION v. HALFERTY (three cases).

Nos. 1609-1611.

United States Court of Appeals, District of Columbia.

January 7, 1924

Submitted November 16, 1923.

Arthur E. Wallace, of Chicago, Ill., for appellee.

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

SMYTH Chief Justice.

These are opposition proceedings, in each of which Halferty applied for the registration of a trade-mark to be used on canned salmon. The mark in No. 1609 consisted of the words 'Gold Band' and a band of gold extending from one end to the other of the label; in No. 1610, of the words 'Silver Band' and a silver band extending like the gold band; and in No. 1611, of the words 'White Band' and a band of white of the same length as the other bands. Applicant commenced the use of his brands about June, 1921. Opposer bases its contention on two registered marks; one consisting of the words 'Gold Bar,' the background of which is a gold bar or band, and the other of the words 'Silver Bar,' the background of which is a silver band. Each was applied by it to canned fruits for many years before the applicant came into the field, but neither was used on canned salmon until after the applicant had adopted his mark. The latter is therefore prior in point of time as to that use.

Two questions are presented for decision: (1) Whether canned salmon and canned fruits have the same descriptive properties, within the meaning of the Trade-Mark Act (Comp St. Sec. 9490); and (2) if they have, whether or not the marks are so similar as to be likely to produce confusion in the minds of purchasers. The Examiner of Interferences held that they were not similar and dismissed the opposition. The dismissal was upheld by the Assistant Commissioner, who ruled that the silver and gold bars of the opposer were readily distinguishable from the marks of the applicant.

We think the goods belong to the same class and have the same descriptive properties. Both are known as canned goods. We held in California Packing Corporation v. Price-Booker Mfg. Co., 52 App.D.C. 259, 285 F. 993, that canned fruits and canned pickles were goods of the same class. The reasons given for doing so support our conclusions here. In the Second Circuit it was decided by the Circuit Court of Appeals that pancake flour and pancake syrup had the same descriptive properties. In doing so it observed that syrup and flour are both food products, and foods products commonly used together. Obviously, the public, or a large part of it, seeing the trade-mark in question on a syrup, would conclude that it was made by the complainant, although they might not do so, if it were used on flatirons. Aunt Jemima Mills Co. v. Rigney & Co., 247 F. 407, 159 C.C.A. 461, L.R.A. 1918C, 1039. We may say the same here with respect to the goods of the contending parties. They are related to each other, both being food products, and are not only commonly used together, but are commonly sold in the same kind of stores.

Concerning the alleged similarity of the marks, it seems to us that the goods would be known by the printed words in the mark attached to them, as, for instance, a package of salmon bearing the mark 'White Band' would be known as White Band salmon, and that bearing the 'Gold Bar' as Gold Bar salmon. It is not believed that any confusion would follow from the use of the White Band and the Gold Bar or Silver Bar marks. But in our judgment it is otherwise in the case of the Gold Band and Silver Band marks of the appellant and the Gold Bar and Silver Bar marks of the opposer. 'Gold Bar' and 'Gold Band' look and sound a good deal alike. So do 'Silver Bar' and 'Silver Band.' It would be easy to mistake the one name for the other. While the bands used by the opposer are wider on its specimens than are those on the specimens of the applicant there is...