JP Heilbronn Co. v. Hammermill Paper Co., Patent Appeal No. 2720.

Decision Date29 April 1931
Docket NumberPatent Appeal No. 2720.
Citation48 F.2d 963
PartiesJ. P. HEILBRONN CO. v. HAMMERMILL PAPER CO.
CourtU.S. Court of Customs and Patent Appeals (CCPA)

Warner I. Cubberley, of Washington, D. C., for appellant.

Merrell E. Clark, of New York City, for appellee.

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

BLAND, Associate Judge.

This appeal involves a petition for the cancellation of appellee's trade-mark. The petition was dismissed by the Examiner of Interferences, and his decision was affirmed by the Commissioner of Patents, and from the latter's decision this appeal is taken.

The Hammermill Paper Company of Erie, Pa., hereafter called Hammermill, on March 31, 1925, registered the trade-mark "Luna" for bond writing paper. The date of the first use of this trade-mark of the registrant in interstate commerce was in February, 1924, and ever since that date Hammermill has shipped large and increasing quantities of bond writing paper bearing the trade-mark "Luna Bond, Made in U. S. A.," into various states and into many different countries of the world.

In December, 1924, appellant, J. P. Heilbronn Company, hereafter known as Heilbronn, placed upon the market in competition with Hammermill its own bond writing paper bearing the trade-mark "Luna Bond"; the words being printed in the same style as that of Hammermill, and accompanied by a crescent or half-moon, with the outline of a face in the hollow of the crescent.

The Oregon Pulp & Paper Company, of the state of Oregon, was the manufacturer of the paper for Heilbronn. When Hammermill objected to the said paper company manufacturing the paper, Heilbronn gave the paper company an indemnity bond, and then proceeded to petition for cancellation.

Heilbronn's first ground for cancellation is based upon the fact that, prior to the use of the word "Luna" by Hammermill, appellant had used, upon other kinds of paper such as pads, wrappers, booklets, etc., a trade-mark which was described by the Commissioner in his decision as:

"* * * The representation of a crescent within the concave portion of which appears a representation of a man's face, and a representation of a five-pointed star enclosing the letter "H" appears hung or suspended from the upper horn of the moon crescent. * * *"

Heilbronn's position is that, since that symbol includes the crescent, and since it claims that "Luna" is the Spanish word for moon, the use of the Hammermill trade-mark "Luna" will lead to confusion and to the damage of Heilbronn; that, since "Luna" means moon in Spanish, appellee's mark "Luna" in Spanish countries will be confused by the paper purchasing public with appellant's so-called crescent mark.

Appellant further contends that appellee has not shown "clean hands" as based upon facts which will be briefly stated: American Paper Exports, Inc., was the selling agency for Hammermill, and S. Allen Presby was the agent and customer of said American Paper Exports, Inc., in the Philippine Islands. In 1924, when a shipment of Hammermill's "Luna" goods, shipped by American Paper Exports, Inc., arrived in the Philippines, Heilbronn brought suit against Presby and another for injunction and damages, basing its suit on Heilbronn's Philippine registered trade-mark, which mark consisted of the crescent and the star inclosing the letter "H." In settlement of the suit, it...

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4 cases
  • In re Riverbank Canning Co.
    • United States
    • U.S. Court of Customs and Patent Appeals (CCPA)
    • April 4, 1938
    ...App.D.C. 181, 262 F. 635; Nestle & Anglo-Swiss Condensed Milk Co. v. Walter Baker & Co., Limited, 37 App.D.C. 148; J. P. Heilbronn Co. v. Hammermill Paper Co., 48 F.2d 963, 18 C.C.P.A., Patents, We must, therefore, in considering the registrability of the mark "Madonna" as a trade-mark, con......
  • In re Dutch Maid Ice Cream Co.
    • United States
    • U.S. Court of Customs and Patent Appeals (CCPA)
    • March 28, 1938
    ...of a word has the same effect as the use of a picture if the word meaning is the same as the meaning of the picture. Heilbronn Co. v. Hammermill Paper Co., 48 F.2d 963, 18 C. C.P.A., Patents, 1307. It necessarily follows that the converse must be true — that the use of a picture has the sam......
  • Moore v. Greene
    • United States
    • U.S. Court of Customs and Patent Appeals (CCPA)
    • April 29, 1931
    ...18 CCPA 1317, 48 F.2d 960 (1931) ... Patent Appeal No. 2721 ... Court of Customs and Patent ... D. C. 273, 29 F.(2d) 861; General Electric Co. v. Steinberger (C. C. A.) 214 F. 781. In Brogden ... ...
  • Northmont Hosiery Corp. v. True Mfg. Co., Civ. A. No. 4835.
    • United States
    • U.S. District Court — Eastern District of Wisconsin
    • September 28, 1951
    ...also asserts that "a word trade mark is the complete equivalent of a picture trade mark described by the word". Heilbronn Co. v. Hammermill Paper Co., 48 F.2d 963, 18 C.C.P.A., Patents, Plaintiff's reply to this position is twofold. Plaintiff asserts first that it is the law of this circuit......

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