Modern Optics v. Univis Lens Company

• Decision Date: 20 June 1956
• Docket Number: Patent Appeal No. 6207.
• Citation: 110 USPQ 293,234 F.2d 504
• Parties: MODERN OPTICS, Incorporated, Appellant, v. The UNIVIS LENS COMPANY, Appellee.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

110 USPQ 293, 234 F.2d 504 (1956)

MODERN OPTICS, Incorporated, Appellant, v. The UNIVIS LENS COMPANY, Appellee.

Patent Appeal No. 6207.

United States Court of Customs and Patent Appeals.

June 20, 1956.

Watson, Cole, Grindle & Watson, Washington, D. C. (Harold F. Watson, Washington, D. C., and F. M. deRosa, New York City, of counsel), for appellant.

Warren H. F. Schmieding, San Diego, Cal. (John H. O. Clarke, Washington, D. C., of counsel), for appellee.

Before JOHNSON, Acting Chief Judge, and WORLEY, COLE and JACKSON, retired, Judges.

JOHNSON, Acting Chief Judge.

This is an appeal in an opposition proceeding filed in the Patent Office by Modern Optics, Incorporated, appellant, against an application by The Univis Lens Company, appellee, for registration of a trade-mark for ophthalmic lens blanks and eyeglass lenses.

The mark is described in the decision of the Examiner of Interferences as follows:

"The mark which the applicant seeks to register comprises a pictorial representation of an eye from which outwardly projecting lines radiate through a lens to and through the wording `Continuvis Lenses\' and the initials `CV\' said initials being shaded block letters much larger than any other lettering used in the mark, and more or less centrally positioned with respect to the mark whereby they form the most prominent part of the mark.

"The word `Lenses\' and the pictorial representation of the lenses appearing on the drawing have been disclaimed."

The opposer does not allege ownership of any mark similar to that of the applicant, but bases its opposition on the ground that the mark sought to be registered is descriptive and therefore unregistrable. That view was accepted by the examiner in sustaining the opposition but was rejected by the Assistant Commissioner. The instant appeal followed.

While the goods listed in appellee's application are ophthalmic lens blanks and eyeglass lenses, the specific goods to which the mark has been applied, as disclosed by the record, are trifocal lenses.

The question to be decided here, as below, is whether the letters "CV," as applied to such goods are descriptive within the meaning of Section 2(e) of the Lanham Act, Trade-Mark Act of 1946.¹

In support of the contention that the letters "CV" are merely descriptive of the goods to which they are applied, appellant alleges those letters are generally recognized as an abbreviation of, and as synonymous with, the words "continuous vision," which, in turn, are alleged to be merely descriptive of trifocal lenses.

Although it has been held that a mark may be descriptive if it aptly describes the function or use of the goods to which it is applied, In re W. A. Sheaffer Pen Company, 158 F.2d 390, 34 C.C. P.A., Patents, 771, and Andrew J. McPartland, Inc., v. Montgomery Ward & Co., Inc., 164 F.2d 603, 35 C.C.P.A., Patents, 802, we do not think that is the case here.

As noted by the examiner, there is of record advertising matter used by appellee when it first introduced the words "continuous vision," strongly suggesting a descriptive connotation as applied to trifocal lenses on the theory such lenses allegedly enable the eye to adjust to objects at various distances in such a way as to avoid noticeable interruption. It was his opinion that appellee, after using such advertising was not in a favorable position to urge that the words "continuous vision" are not descriptive.

On the other hand, appellee argues that the advertising matter in question, considered in its entirety, merely asserts that the words "continuous vision" are suggestive of the function of the lenses to which they are applied, and that the word "descriptive" was not employed in its trademark sense in said advertising.

Viewing the evidence as a whole, it is by no means certain the words "continuous vision" are descriptive of the function of trifocal lenses as distinguished from being merely suggestive thereof. The record shows that trifocal lenses had been in use for more than fifty years before those words were applied to them. That would indicate the words were not necessary to describe such lenses, and apparently were not considered obvious or natural for that purpose. It is only when the function of trifocal lenses...