In re Sun Oil Co.

• Decision Date: 27 May 1931
• Docket Number: Patent Appeal No. 2743.
• Citation: 49 F.2d 965,18 CCPA 1421
• Parties: In re SUN OIL CO.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

18 CCPA 1421, 49 F.2d 965 (1931)

In re SUN OIL CO.

Patent Appeal No. 2743.

Court of Customs and Patent Appeals.

May 27, 1931.

Busser & Harding of Philadelphia, Pa. (Frank S. Busser and George J. Harding, both of Philadelphia, Pa., of counsel), for appellant.

T. A. Hostetler, of Washington, D. C., for the Commissioner of Patents.

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

BLAND, Associate Judge.

The Commissioner of Patents affirmed the decision of the examiner of interferences in refusing to register appellant's proposed trade-mark which consists of a blue color imparted to gasoline. Appellant has appealed to this court from the decision of the commissioner.

In appellant's application for registration he sets out the following: "The mark consists of a blue color imparted to the gasoline. * * * The trade-mark is applied to the gasoline by adding a very small proportion of blue coloring matter to the gasoline before it is placed into containers. * * *"

The refusal to register on the part of the Patent Office tribunals was upon the ground chiefly that one cannot have a trade-mark monopoly of a mark which consists of the color of the article alone.

The contention made by appellant in this case is substantially the contention made by the appellant in Re General Petroleum Corporation of California, 49 F.(2d) 966, 18 C. C. P. A. ___ decided concurrently herewith, in which decision this court went fully into the question of the registrability of a trade-mark identical, except as to color, with the one proposed herein. In that case the color imparted to the gasoline involved was violet. There we cited the pertinent authorities and discussed the law somewhat at length and our decision affirmed that of the commissioner which refused registration. Nothing that we said in that case need be repeated here and the reasoning and cited authorities in that case are controlling in this one.

Appellant in the case at bar has argued with great earnestness that the commissioner's holding that the blue color imparted to the gasoline could not function as a trade-mark was contrary to the express provision of section 5 of the Trade-Mark Act of February 20, 1905, as amended (15 USCA § 85), which in part reads as follows:

"Sec. 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 trade-mark on account of the nature of such mark unless such mark — "(a) Consists of or comprises immoral or scandalous matter.

"(b) Consists of or comprises the flag or coat of arms or other insignia of the United States or any simulation thereof, or of any State or municipality or of any foreign nation, or of any design or picture that has been or may hereafter be adopted by any fraternal society as its emblem, or of any name, distinguishing mark, character, emblem, colors, flag, or banner adopted by any institution, organization, club, or society which was incorporated in any State in the United States prior to...