National Biscuit Co. v. JB Carr Biscuit Co.

• Decision Date: 01 December 1924
• Docket Number: No. 1677.,1677.
• Citation: 3 F.2d 87,55 App. DC 146
• Parties: NATIONAL BISCUIT CO. v. J. B. CARR BISCUIT CO.
• Court: U.S. Court of Appeals — District of Columbia Circuit

55 App. DC 146, 3 F.2d 87 (1924)

NATIONAL BISCUIT CO. v. J. B. CARR BISCUIT CO.

No. 1677.

Court of Appeals of District of Columbia.

Submitted November 12, 1924.

Decided December 1, 1924.

William L. Symons, of Washington, D. C., and F. P. Warfield, E. W. Leavenworth, and J. W. Anderson, all of New York City, for appellant.

E. T. Fenwick and C. R. Allen, both of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.

MARTIN, Chief Justice.

On May 17, 1920, the J. B. Carr Biscuit Company, now the appellee, filed an application in the Patent Office for the registration of the word "Eta" as a trade-mark for its biscuits and crackers, claiming that it had continuously used the same in the sale of such commodities since July 1, 1911.

The National Biscuit Company, now the appellant, opposed the registration upon the contention that the word "Eta," if used as a trade-mark for biscuits and crackers, would be so similar to the word "Uneeda," which is the opposer's prior trade-mark for similar goods, that it would cause confusion in the trade, deceive purchasers, and inflict great injury upon the opposer.

The Examiner of Interferences dismissed the opposition, and held that the applicant company was entitled to a registration of the mark. This decision was affirmed by the Commissioner of Patents; hence the present appeal.

No testimony was taken by either party, but by stipulation the following facts were brought upon the record, to wit: that the National Biscuit Company is a corporation organized to manufacture, buy, sell, and export biscuits and crackers; that in the year 1898 it adopted the word "Uneeda" as a trade-mark in advertising and selling such articles; that the mark was duly registered on December 27, 1898, and the company has continuously used it in its biscuit trade since that date; that it has advertised its goods under the mark at very great expense, and has built up an extensive trade with it, so that now the mark possesses a commercial value of many millions of dollars, and the good will of the company depends largely upon preventing the mark from being imitated.

In answer to certain interrogatories the applicant company stated that it had advertised the mark "Eta" in its biscuit trade, and had expended "more than $200" for advertising it in newspapers, calendars, and lithographic store display cards.

Upon the foregoing facts, it is our opinion that the words "Uneeda" and "Eta," if used as trade-marks for competing articles of identical character, are sufficiently similar both in sound and meaning to produce confusion in the trade, and to deceive purchasers, and that under the circumstances disclosed by the record such confusion in this instance would naturally and necessarily result in great injury to the opposer.

The similarity of sound between the two words is obvious. The dominating vowel of each is the letter "e," and this is pronounced alike in both words. The final consonant in...