California Packing Corp. v. Price-Booker Mfg. Co.
| Decision Date | 02 January 1923 |
| Docket Number | 1495. |
| Citation | 285 F. 993 |
| Parties | CALIFORNIA PACKING CORPORATION v. PRICE-BOOKER MFG. CO. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Submitted November 13, 1922.
William G. Henderson, of Washington, D.C., and Archibald Cox, of New York City, for appellant.
J. W Milburn, of Washington, D.C., for appellee.
Before SMYTH, Chief Justice, and ROBB and VAN ORSDEL, Associate justices.
This is an opposition proceeding. The appellee applied to the Commissioner of Patents for registration of the word 'Mission,' accompanied by a representation of a mission house as a trade-mark for flavoring extracts for foods, mustard, tomato catsup, relishes made of chopped and ground pickles packed in spices and vinegar, chow chow, salad dressing, and vinegar. The mark is affixed to the goods or the containers thereof. The appellant uses substantially the same mark on canned fruits, canned vegetables, foods, and ingredients of foods, and the mark is applied to cans or glasses containing the goods. The appellee has used its mark since 1908, and the appellant established a date in the year 1892. Therefore the latter is entitled to priority. About this there seems to be no conflict.
The dispute relates to the question as to whether the goods of the respective parties belong to the same class or have the same descriptive properties. The Examiner of Interferences feeling bound by a prior decision of the Office, ruled that the goods did not possess the same descriptive properties and dismissed the opposition. On appeal the First Assistant Commissioner, recognizing that there was a conflict in the decisions of the Office with respect to whether or not canned fruits and canned vegetables had the same descriptive properties as pickles, took the view that they had not. In doing so he adopted the reasoning of the case which he followed. It was to the effect that the goods did not belong to the same class, because canned fruits and canned vegetables require a different manufacturing plant from that needed in the manufacture of pickles; the latter are packed and shipped in glass or wooden vessels, while canned fruits and vegetables are shipped in air-tight tins; pickles have no food value, and are intended only as incitements to the appetite. But we do not think these considerations solve the problem. They relate chiefly to features which ordinarily would be unknown to the prospective...
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