General Foods Corporation v. Casein Co.

• Decision Date: 26 December 1939
• Docket Number: Patent Appeals No. 4195.
• Citation: 108 F.2d 261
• Parties: GENERAL FOODS CORPORATION v. CASEIN CO. OF AMERICA, Inc.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

108 F.2d 261 (1939)

GENERAL FOODS CORPORATION v. CASEIN CO. OF AMERICA, Inc.

Patent Appeals No. 4195.

Court of Customs and Patent Appeals.

December 26, 1939.

Mansfield C. Fuldner, of New York City, and Thomas L. Mead, Jr., of Washington, D. C., for appellant.

Maxwell Barus, of New York City, for appellee.

Before GARRETT, Presiding Judge, and BLAND, HATFIELD, LENROOT, and JACKSON, Associate Judges.

JACKSON, Associate Judge.

This is an appeal in a trade-mark opposition proceeding from the decision of the Commissioner of Patents affirming the decision of the Examiner of Interferences and holding that appellee is entitled to the registration of the trade-mark "Certora" for use on "dry skimmed milk."

In its application appellee alleges use by it of the said trade-mark since July 6, 1936.

In its notice of opposition appellant alleges that it and its predecessors have continuously used, since on or about March 25, 1921, the trade-mark "Certo" as applied to a pectin product for making jams and jellies and that the product so marked has been extensively advertised and widely sold throughout the United States; that its said trade-mark has acquired and continues to have great value.

The said mark "Certo" has been duly registered in the United States Patent Office as follows: No. 152,479, February 28, 1922; No. 152,937, March 7, 1922; No. 228,213, May 24, 1927.

The notice of opposition alleges that the word "Certora" so nearly resembles the registered mark "Certo" as to be likely to cause confusion and mistake in the mind of the public and to deceive purchasers and further alleges that the registration of appellee's mark applied to "dry skimmed milk" which is a food product and goods of the same descriptive properties as those of appellant would be injurious to appellant. These allegations are denied by appellee's answer.

Testimony was taken by both parties. The record shows that the goods of appellant consist of liquid fruit pectin put up in small bottles and intended for retail sale for household use in the making of jams and jellies. The pectin of appellant is a product obtained from apples, and when it is added to the substances from which jellies and jams are made, the jellies "jell" and the jams "jam" more easily.

The testimony of appellee shows that the merchandise to which its trade-mark is applied is a form of dry skimmed milk in powder form made by the "roller" process. The said product made by this process is claimed to possess properties which are not possessed by dry skimmed milk in powder form made from other processes such as the "spray" process. It was testified that the "roller" process dry skimmed milk is not suitable for ordinary household use because of the fact that it is not entirely soluble and it would be difficult for a woman to handle it. It is sold solely through the sales organization of appellee and only in 200-pound barrels. The sales are made directly to consumers which are, for the greater part, the baking industry for use in making bread, and, to a lesser extent, milk chocolate manufacturers. The record further shows that during the World War appellee sold a "spray" process skimmed milk in one-pound packages for household consumption. These sales were discontinued shortly after the war for the reason that the demand was insufficient for the product. It may be, however, that the insufficiency of demand might have been caused by trade conditions, as it appears to be indicated in the record that dry skimmed milk made by the "spray" process is probably suitable for household use. The description of the goods as shown in the application to be "dry skimmed milk" was believed by the examiner to be controlling upon the question of the identity of the goods of appellee, here...