Gray v. Armand Co.
| Decision Date | 05 March 1928 |
| Docket Number | No. 2022.,2022. |
| Citation | 24 F.2d 878 |
| Parties | GRAY v. ARMAND CO. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
W. P. Preble, of New York City, for appellant.
Paul Finckel and J. T. Newton, both of Washington, D. C., and W. P. Bair, of Des Moines, Iowa, for appellee.
Before MARTIN, Chief Justice, VAN ORSDEL, Associate Justice, and SMITH, Judge of the United States Court of Customs Appeals.
The trade-marks in interference are substantially the same, consisting of the picture of a girl in similar style dress, slightly differing in color. The goods on which the marks are claimed to have been used by the respective parties are cosmetics, including face powders, talcum powders, creams, lipsticks, preparations for the hair, etc. The Armand Company established prior use of the design in interference.
The Examiner of Trade-mark Interferences decided in favor of the Armand Company, his decision was affirmed by the Commissioner, and the case is here on appeal.
There is no dispute as to the facts. It is contended by counsel for appellant that no legal trade-mark use has been made by the Armand Company of its mark, for the reason that the mark was never affixed, attached, or applied to any goods which were sold and passed into the customer's possession. The mark was labeled "The Armand Girl." The picture was affixed to a box containing powder or cold cream and attached to a block of wood, which stood on the counter where the goods were displayed for sale. This combination, picture, box, and block, was not sold or in any way conveyed to a customer, but was retained in the store merely to attract the attention of customers to the goods. The box, attached to the block of wood and standing on the counter, contained a free sample of face powder or cold cream, so that customers desiring to might sample it. If, however, the customer should purchase a box of the goods, the package purchased would not contain the "Armand Girl" mark. It is urged, therefore, that the use made by appellee company was merely for advertising purposes, to attract the attention of the public to the goods on sale.
It also appears that a pamphlet was issued by the Armand Company, which contained on the lower right-hand corner of the back cover a small picture of the "Armand Girl." The front cover contained a silhouette head of a lady of the time of Louis XVI of France, which is a trade-mark of the Armand Company used on face powder packages, and many other articles. This pamphlet it was also claimed was issued for advertising purposes.
The sole question, therefore, is whether or not this constitutes a legal trade-mark use. It is settled law that the office of a trade-mark is to distinctly point out the origin or ownership of the article to which the mark is attached. It follows, therefore, that, to establish a right to the registration of a trade-mark, two things are necessary: That it must have been actually applied to...
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