Helen Schy-Man-Ski & Sons v. SSS CO.

• Decision Date: 03 December 1934
• Docket Number: Patent Appeal No. 3351.
• Citation: 73 F.2d 624,22 CCPA 701
• Parties: HELEN SCHY-MAN-SKI & SONS v. S. S. S. CO.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

22 CCPA 701, 73 F.2d 624 (1934)

HELEN SCHY-MAN-SKI & SONS v. S. S. S. CO.

Patent Appeal No. 3351.

Court of Customs and Patent Appeals.

December 3, 1934.

Harry H. Hitzeman, of Chicago, Ill., for appellant.

C. L. Parker, of Washington, D. C. (Arthur G. Powell, of Atlanta, Ga., of counsel), for appellee.

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

GRAHAM, Presiding Judge.

The appellant, a corporation doing business as S-M-S Herb-Nu Remedies, of Chicago, Ill., filed its two applications in the United States Patent Office for registration of certain trade-marks for a general tonic. These applications were each filed on May 30, 1930. Thereupon the appellee, S. S. S. Company, a corporation existing under and by virtue of the laws of the state of Georgia, and having its residence in the city of Atlanta, in said state, gave notice of opposition to both attempted registrations, alleging the continuous use of, first, the letter "S," and thereafter the letters "S S S," as trade-marks, for over fifty years, and from a period prior to the year 1879, upon a medical preparation or remedy for the cure of blood and skin diseases, and for purifying the blood. The opposer alleged that the goods of opposer and the appellant were of the same descriptive properties, and that the use of appellant's marks, which it here proposes to register, would be likely to cause confusion in trade and deception of the public to the damage and injury of the opposer. Testimony was taken by both parties.

The marks proposed to be registered by the appellant are properly described by the Examiner of Interferences as follows:

"The drawing of application serial number 301,763, discloses a mark consisting of the relatively large letters `S. M. S.' displayed within concentric circles divided by radial lines intersecting at right angles. The disclaimed words `Spring,' `Summer,' `Autumn' and `Winter,' `for All Year Round Use' appear in association with the features described.

"Application serial number 301,764, discloses a mark consisting of the same letters, `S. M. S.,' displayed against a background simulating a keystone."

The dominating portions of the marks of appellant and appellee are "S.M.S" and "S. S. S."

The two oppositions were consolidated by the Examiner of Interferences, and have both been disposed of at the same time by the tribunals of the Patent Office, and will be so disposed of here.

As a result of the consideration of the record, the Examiner of Interferences was of the opinion that confusion would be likely to result from the registration of the proposed trade-marks and sustained the oppositions. On appeal, the commissioner affirmed the decision of the Examiner of Interferences. Before the commissioner, the point seems to have been presented by the applicant that the opposer did not come into court with clean hands, alleging a misrepresentation by the opposer of the properties of its remedy. As to this, the commissioner was of the opinion that even if the commissioner had jurisdiction of such subject-matter, sufficient proof had not been offered in the record upon which any decision could be made.

The appellant has appealed to this court, contending in his brief that the commissioner was in error in finding that confusion was likely to result; that, as a matter of fact, no confusion had ever existed; and that the opposer is not entitled to relief because it does not come with clean hands.

The facts of the case, as shown by the record, are, briefly, as follows:

In 1878 one C. T. Swift registered in the United States Patent Office a trade-mark consisting of a monogram composed of the letters "SSS" placed in the center of a circle, above which were ornamental scrolls on which were the words "Swift's Syphilitic Specific and Blood Purifier." It is admitted that, at that time, this remedy was used for the cure of certain blood and skin diseases, and that especially it was adopted and used for the treatment of syphilis. The business afterwards was conveyed through successive conveyances to the present corporation, known as the "S. S. S. Co.," which now manufactures the product by the same formula as that originally used by Swift. The record further shows that the mark first used was the letter "S," and various registrations through the years show first the letter "S" and then the three S's used as the continuous trade-mark for the business. Sometimes the "SSS" was written without periods, and at others "S. S. S.," which is and was the form used at the time notices of opposition were filed herein. The record shows that after the discovery of salvarsan or "606," and perhaps sooner because of prohibitive state laws, the remedy of the opposer was not advertised or recommended for the relief of venereal diseases. It is alleged by counsel for appellant that the opposer has, at various times, claimed its product to be a remedy for cancer. We find no such fact appearing in the record. As this statement repeatedly appears in appellant's brief, it seems proper for the court to suggest that this statement is made through unfamiliarity with the contents of the record.

On the part of the applicant, it appears from the record that its business originated in Mrs. Helen Schymanski, who resides at 1869 North Daman avenue, in Chicago, and...