In re Burgess Battery Co.

• Decision Date: 24 June 1940
• Docket Number: Patent Appeal No. 4347.
• Citation: 112 F.2d 820
• Parties: In re BURGESS BATTERY CO.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

112 F.2d 820 (1940)

In re BURGESS BATTERY CO.

Patent Appeal No. 4347.

Court of Customs and Patent Appeals.

June 24, 1940.

Tesch & Darbo, of Chicago, Ill. (Clarence M. Fisher, of Washington, D. C., of counsel), for appellant.

Howard S. Miller, of Washington, D. C., for the Commissioner of Patents.

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

HATFIELD, Associate Judge.

This is an appeal from the decision of the Commissioner of Patents affirming the decision of the Examiner of Trade-Marks denying appellant's application for the registration of an alleged trade-mark under the Trade-Mark Act of February 20, 1905, 15 U.S.C.A. § 81 et seq.

The mark in question, for use on "dry batteries" and "flash light cases," comprises, as stated in the decision of the Commissioner of Patents, "alternating black and white stripes, unrestricted as to number or length or as to the shape or size of area covered by the striping. The specimens filed with the application show the stripes applied entirely about the goods and packages" by affixing thereto labels upon which the design is printed.

The tribunals of the Patent Office concurred in holding that appellant's alleged trade-mark, although in a general sense a design, is, in fact, merely a decorative or ornamental dress for appellant's goods, and that the distinctive feature of the alleged trade-mark is lost in repetition and in its ornamental relationship to the "dry batteries" and "flash light cases."

In his decision, the Examiner of Trade-Marks said:

"The applicant submits affidavits to show that the mark was adopted for trade-mark purposes and that it functions as a trade-mark. That the mark may be recognized now as indicia of applicant's goods is saying no more than that the dress of goods is generally so recognized. If the mark is but a dress of goods, it seems immaterial that its adoption was inspired by a desire that it should function as an indication of origin.

"* * *

"The symbol adopted by the applicant has a primary meaning of ornamentation and, in the absence of any copyright protection, is open to others for the purpose of ornamentation. Its eventual use as an indication of origin is, of course, protected by the law of unfair competition, but its registration as a trade-mark is believed forbidden by the above decision Standard Paint Company v. Trinidad Asphalt Manufacturing Company, 220 U.S. 446, 31 S.Ct. 456, 55 L.Ed. 536."

In his decision, the Commissioner of Patents stated inter alia:

"That the over-all striping since its adoption has acquired some trade-mark significance does not, in my opinion, change the status of the marking from constituting primarily the dress or ornamentation of the goods to the status of a technical trade-mark, and in my opinion does not render the mark registrable as a trade-mark. In re Canada Dry Ginger Ale, Inc., 86 F.2d 830, 24 C.C.P.A. Patents 804.

"Accordingly, in my opinion, the overall striping of the goods and packages filed with the application is not entitled to registration as a trade-mark, and since the registration sought herein comprehends such striping, I consider the rejection of the application to have been proper.

"It is to be noted that the mark sought to be registered is not confined to the arrangement of the alternate black and white stripes in any particular shape or design, such as a circle, square, triangle, cross or star. For this reason, the present case is believed to distinguish from such cases as Hygienic Products Co. v. Coe, 66 App.D.C. 98, 85 F.(2d) 264, in which the trade-mark was confined to a rectangular panel."

It is contended by counsel for appellant that the "stripe design is physically susceptible of appropriation as a trade-mark," and that, although it...