Hy-V Co., Inc. v. Campbell Soup Co.

• Decision Date: 18 December 1951
• Docket Number: Patent Appeals No. 5830.
• Citation: 343 US 977,193 F.2d 338
• Parties: HY-V CO., Inc. v. CAMPBELL SOUP CO.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

193 F.2d 338

343 US 977

HY-V CO., Inc. v. CAMPBELL SOUP CO.

Patent Appeals No. 5830.

United States Court of Customs and Patent Appeals.

December 18, 1951.

Thomas L. Mead, Jr., William E. Schuyler, Jr., and Francis C. Browne, Washington, D. C. (Jewett, Mead, Browne & Schuyler, Washington, D. C., of counsel), for appellant.

Watson, Johnson, Leavenworth & Blair, New York City (Ellis W. Leavenworth, Leslie D. Taggart, and Tracy R. V. Fike, New York City, of counsel), for appellee.

Before GARRETT, Chief Judge, and JACKSON, O'CONNELL, JOHNSON, and WORLEY, Judges.

GARRETT, Chief Judge.

This is an appeal from the decision of the Commissioner of Patents, speaking through the Assistant Commissioner, affirming that of the Examiner of Interferences in a trade-mark opposition proceeding, 86 U.S.P.Q. 217.

March 12, 1947, appellant, Hy-V Company, filed its application, serial No. 518,889 in the Patent Office for the registration, under the Trade-Mark Registration Act of 1905, now 15 U.S.C.A. § 1051 et seq., of the notation "hyV" as a trade-mark for "canned fruit juices for food purposes," continuous use of the mark being alleged "since January 7, 1947."

April 28, 1948, appellee, Campbell Soup Company, filed notice of opposition to the registration so sought. In the notice appellee alleged ownership and use by itself and predecessors in business of two registered trade-marks, the first being the notation "V-8" for a "combination of eight vegetable juices," which was registered in the name of New England Products, Inc., January 25, 1938, upon an application, serial No. 397,587, filed September 20, 1937, and the second being the same notation registered in the name of Standard Brands Incorporated as a trade-mark for "canned mixed vegetable juices which may be served cold or used as a soup preparation." The latter mark was registered October 15, 1946, upon an application, serial No. 498,803, filed January 25, 1946.

Appellee's ownership of the registrations by transfers, duly recorded in the Patent Office, is not questioned by appellant, nor was any question raised as to the matter of prior user.

We think the respective marks may be visualized readily from the description of them given in the brief for appellant as follows:

"* * * each of the lower case letters `h' and `y' is approximately two-thirds of the height of the letter `V' and the width of each of the lower case letters `h' and `y' is approximately one-half of the width of the letter `V', the over-all...