International Braid Co. v. Thomas French & Sons

• Decision Date: 02 July 1945
• Docket Number: Patent Appeal No. 4969.
• Citation: 150 F.2d 142,66 USPQ 109
• Parties: INTERNATIONAL BRAID CO. v. THOMAS FRENCH & SONS, Limited.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

66 USPQ 109, 150 F.2d 142 (1945)

INTERNATIONAL BRAID CO. v. THOMAS FRENCH & SONS, Limited.

Patent Appeal No. 4969.

Court of Customs and Patent Appeals.

May 24, 1945.

Rehearing Denied July 2, 1945.

Herbert B. Barlow, of Providence, R. I., for appellant.

Harry C. Bierman, of New York City, for appellee.

Before GARRETT, Presiding Judge, and BLAND, HATFIELD, JACKSON, and O'CONNELL, Associate Judges.

O'CONNELL, Associate Judge.

This appeal is from the decision of the Commissioner of Patents, 58 U.S.P.Q. 562, sustaining an opposition to the registration of appellant's mark on the grounds, first, that the mark is devoid of trade-mark significance; and, secondly, that its registration is otherwise prohibited because the mark so nearly resembles the registered mark of appellee as to be likely to cause confusion or mistake in the mind of the public.

The merchandise of the respective parties is of the same descriptive properties. It consists of two lateral bands of ladder web used as cross-straps to support the slats of venetian blinds.

The registered mark consists of two widely separated threads of blue, woven longitudinally into the cross-straps so as to be visable and distinctive from the rest of the strap. Appellant's mark also consists of two threads woven longitudinally into the cross-straps; but these two threads are located much closer together than are the threads of the registered mark and are side by side giving the appearance of a single line.

Appellant's mark as described in its amended application is as follows:

"The mark consists of an arbitrarily selected single narrow hair line stripe extending along substantially the middle of the cross straps of the ladder tape, said stripe being of generally the same color as the color of the strap but having a different shade or having different light-reflecting properties from the adjacent surface of the strap to be distinctive therefrom, for example, a red strap would have a distinctive red stripe, a black strap would have a distinctive black stripe, etc. The mark is applied to the goods by weaving two adjacent warp threads of the same color as the cross straps but of distinctive shade or distinctive light-reflecting properties therefrom into the longitudinal center of the cross straps of the ladder tape." (Italics ours)

Appellant contends that the comparative color scheme provided for in its application for registration is a definite provision which calls for the use of a specific color. The import of appellant's argument is that under the provisions of the Trade-Mark Law, its mark is entitled to registration as a mark limited to a specific color and a specific design, or marking, at a specific location in the goods. It also states that the distinctive light reflecting properties of its mark such as "using a white rayon thread in with white cotton threads" warrants its registration. In substance, it urges that the mark does not monopolize the field of colors as competitors "can identify their goods by adopting other locations or adopting other colors which contrast with the tape or a different color than the tape."

Appellant also contends here that since the registered mark is indefinite and invalid, appellee is not entitled to its registration and exclusive use. The law is well settled that in an opposition proceeding, the issue is whether or not the opposer would probably be damaged by the registration of the applicant's mark. This Court has repeatedly held, in cases of this character, that the issue as to the validity of opposer's registered mark may not be considered.

Furthermore, the law is well settled that a mark, the distinguishing feature of which is partly identified by the use of a design in color, may be registered; provided, however that the designated color is distinctive and specific. On the other hand, the law prohibits the registration of a mark which provides for the use of any color as its distinguishing feature; for the reason not only that such a mark possesses no defined feature which would tend to identify the...