In re Mason Tire & Rubber Co.
| Decision Date | 01 March 1926 |
| Docket Number | No. 1784.,1784. |
| Parties | In re MASON TIRE & RUBBER CO. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
A. L. Lawrence, of Cleveland, Ohio, for appellant.
T. A. Hostetler, of Washington, D. C., for Commissioner of Patents.
Before MARTIN, Chief Justice, ROBB, Associate Justice, and SMITH, Judge of the United States Court of Customs Appeals.
The Mason Tire & Rubber Company on July 3, 1923, filed in the Patent Office, an application to register the words "Safty First," as a trade-mark for use on such goods as belting, hose, machinery packing, nonmetalic tires, and rubber tire casings. On October 11, 1923, registration of the words "Safty First" was refused on the ground that "Safty First" was in effect an emblem of the National Council for Industrial Safety and therefore unregistrable by the petitioner. On October 15, 1923, the petitioner asked leave to amend his petition by inserting an allegation disclaiming any right to the exclusive use of the words "Safety First," except in association with the mark as displayed on the diagram. On April 14, 1924, registration of the words "Safty First" was definitely and finally refused by the Examiner of Trade-Marks, whereupon an appeal was taken to the Commissioner who affirmed the action of the Examiner. From that decision of the Commissioner this appeal was taken.
The record discloses that among the articles of incorporation and association recorded in the Trade-Mark Division of the Patent Office, are papers which set forth the character of the National Council for Industrial Safety and that with those papers is a letter dated March 23, 1915, and addressed to the Patent Office by the attorneys of the Council. That letter calls the attention of the Patent Office to the fact that the Council's opposition to an application by the Lindsborg Company for registration of the words "Safety First," had been sustained and requests that the Examiner of Trade-Marks be instructed to take judicial notice of the fact that the words "Safety First" are used by the National Council for Industrial Safety as an emblem and are not registrable by subsequent users.
The appellant contends, first, that the National Council of Industrial Safety and its successor, the National Safety Council, is not a fraternal organization, within the judicial interpretation of that term; second, that even if the Council was a fraternal organization the words "Safety First" cannot be regarded as either a design or picture and are therefore not protected as an emblem of a fraternal society; third, that it appears from the record in the Lindsborg Case, that the National Council for Industrial Safety is an unincorporated society composed of persons, corporations, and organizations carrying on work to improve conditions as to public and private safety; fourth, that therefore the Council cannot be protected in its use of safety first as a distinguishing mark, character, or emblem under that part of section 5 of the Act of Jan. 8, 1913 (Comp. St. § 9490), which reads as follows:
Section 5: "That no mark by which the goods of the owner of the mark may be distinguished from other goods of the same class shall be refused registration as a...
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