In re Ric-Wil Co.

• Decision Date: 08 February 1937
• Docket Number: Patent Appeal No. 3726.
• Citation: 87 F.2d 516
• Parties: In re RIC-WIL CO.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

87 F.2d 516 (1937)

In re RIC-WIL CO.

Patent Appeal No. 3726.

Court of Customs and Patent Appeals.

February 8, 1937.

Hawgood & Van Horn, of Cleveland, Ohio (Harvey R. Hawgood, of Cleveland, Ohio, of counsel), for appellant.

R. F. Whitehead, of Washington, D. C. (Howard S. Miller, of Washington, D. C., of counsel), for Commissioner of Patents.

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

GRAHAM, Presiding Judge.

The appellant applied in the United States Patent Office for registration under the Trade-Mark Act of February 20, 1905, as amended (15 U.S.C.A. § 81 et seq.), of the trade-mark "Dry-paC" for use in connection with the sale of heat insulating materials. As shown by the application, the letters are shown in black block form. Between the syllables "Dry" and "paC," in the drawing, are representations of two filled bags, one erect and one reclining.

The Examiner required a disclaimer of the representation of the goods and the words "Dry-paC," "Conduit Filler," "Cleveland, Ohio," and "Dry-paC," apart from the mark shown, and also an amendment to show that the crosshatching was for shading and not to indicate color. The applicant disclaimed all except the word "Dry-paC" and also amended as suggested. The Examiner refused registration on the ground that the name desired to be registered was descriptive, and the Commissioner, on appeal, affirmed that decision.

The material upon which the appellant uses the mark in question is treated asbestos in a loose or fibrous state, and is used as a packing for pipes to insulate against the transfer of heat. Appellant states that it is called "Dry-paC" because, being made of asbestos, it is "something more than waterproof, having a property of readily shedding water which may be described as being `water repellant.'" Appellant contends that the material will not keep water away from the pipe with which it is used, but will readily drain it off after the water does reach the pipe. Hence it is argued that the name may be suggestive, but is not descriptive. The applicant cites a large number of marks registered by the office recently, which are claimed to be more descriptive than the one here involved. Even if this be true, it constitutes no reason why the registration of appellant's mark should be allowed, if it be descriptive. Administrative errors cannot change the law.

The Examiner called attention to the fact that it was well known in the art that asbestos materials used as a packing are commonly applied in either a dry form, or in a cementitious form capable of adhering to the surface covered. He also stated that a prime requisite of heat...