McIlhenny Co. v. Trappey

Citation277 F. 615
Decision Date03 January 1922
Docket Number1446.
PartiesMcILHENNY CO. v. TRAPPEY.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Submitted November 21, 1921.

Wm. L Symons, of Washington, D.C., for appellee.

SMYTH Chief Justice.

Trappey applied to the Patent Office to register a trade-mark for tabasco sauce, peppers in vinegar, extract of pepper, and ground pepper, in which occurs the word 'Tabasco.' He alleged that he had used the mark, in the specific form shown in a drawing, since January, 1912, and that he presents with his application a drawing and five specimens of the mark. There are in the record only a diagram consisting of a large shield, within which is a smaller one bearing the word 'Shield,' and two specimens on each of which are several words. In only one appears the word 'Tabasco.' It is as follows:

(Image Omitted)

McIlhenny Company, claiming the right to the exclusive use of the word 'Tabasco' as a trade-mark for pepper sauce, opposed the registration of the mark unless the word 'Tabasco' was eliminated from it. The company alleges that it believes that the use of the words 'Tabasco Sauce' by Trappey is done in an effort 'to commit the Patent Office to an apparent acceptance of the words * * * as a generic name for its possible effect in the suit now pending,' wherein the company is contending with Trappey for the exclusive right to use the word 'Tabasco' as a trade-mark. If this be not an allegation that the company will suffer damage in the event the opposition is not sustained, there is none.

We decided in McIlhenny v. New Iberia E. of T.P. Co., 34 App. D.C. 430, that the word 'Tabasco' was a geographical term, and therefore could not be exclusively appropriated by McIlhenny's Sons in vending pepper sauce. The company claims through the defeated party in that proceeding. We adhere to the decision there rendered.

However this holding does not prohibit the company from objecting to the registration of the word 'Tabasco' for the benefit of another party, because the statute (33 Stat. 726, Sec. 6 (Comp. St. Sec. 9491)) says:

'Any person who believes he would be damaged by the registration of a mark may oppose the same.'

It is not necessary that the opposer should show a superior right to the mark. All that is required of him is a showing that he would probably be damaged, if registration was granted. Atlas Underwear Co. v. B.V.D. Co., 48 App.D.C. 425.

If the company did not show...

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10 cases
  • Quaker State Oil Ref. Co. v. Steinberg
    • United States
    • Pennsylvania Supreme Court
    • January 18, 1937
    ...& Straus, 212 App.Div. 384, 208 N.Y.S. 740, affirmed 241 N.Y. 560, 150 N.E. 555 [Normandy]; McIlhenny Co. v. Trappey, 51 App.D.C. 216, 277 F. 615 2 It was said in 8 Michigan Law Review (1910) p. 613, in an article on "The Unwary Purchaser": "The person to be considered, the courts say is no......
  • Trappey v. McIlhenny Co.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • May 23, 1922
  • Kraft Cheese Co. v. Coe
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • December 18, 1944
    ...5 Cir., 1918, 253 F. 613. Contra: E. McIlhenny's Son v. B. F. Trappey & Sons, 1922, 51 App.D.C. 273, 278 F. 582; McIlhenny Co. v. Trappey, 1922, 51 App.D.C. 216, 277 F. 615; McIlhenny v. New Iberia Extract of Tabasco Pepper Co., 1910, 34 App.D.C. 4 Hamilton-Brown Shoe Co. v. Wolf Bros. & Co......
  • John Wood Mfg. Co. v. Servel, Patent Appeal No. 3422.
    • United States
    • U.S. Court of Customs and Patent Appeals (CCPA)
    • June 12, 1935
    ...show that he would probably be damaged by the registration. Skene v. Marinello Co., 50 App. D. C. 265, 270 F. 701; McIlhenny Co. v. Trappey, 51 App. D. C. 216, 277 F. 615. "Opposer relies on Nairn Linoleum Co. v. Ringwalt Linoleum Works, 46 App. D. C. 64, but there is nothing in it which co......
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