Orange Crush Co. v. California Crushed Fruit Co.
| Decision Date | 07 April 1924 |
| Docket Number | 1631. |
| Citation | 297 F. 892 |
| Parties | ORANGE CRUSH CO. v. CALIFORNIA CRUSHED FRUIT CO. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Submitted January 16, 1924.
Arlon V. Cushman and John J. Darby, Jr., both of Washington, D.C for appellee.
Before ROBB and VAN ORSDEL, Associate Justices, and SMITH, Judge of the United States Court of Customs Appeals.
Appellant alleging that it had built up a very extensive trade in the beverages 'Orange Crush' and 'Lemon Crush,' prior to the adoption by appellee of the mark 'Suncrush,' instituted an opposition proceeding against the registration of the latter term. The tribunals of the Patent Office, while ruling that the marks were applied to goods of the same descriptive properties, dismissed the opposition; the ground of the Assistant Commissioner's decision being that orange crush and lemon crush are aptly descriptive.
Appellee in its petition for registration, states that its mark is used on 'nonalcoholic beverages made from citrus fruits in class 45, Beverages Nonalcoholic,' and that this use has been continuous since September 20, 1920. We therefore will first determine the signification of 'crush' at the time of its adoption by appellant.
From the lexicographers we learn that the verb 'crush' means to press down or together, so as to force out of shape; to crush violently; bruise; mash, as to crush a hat by sitting on it; to break into bits by pressure; comminute, as to crush quartz. The meaning of the noun is a violent colliding pressure of two or more bodies; also the general breaking, bruising, or deforming caused by such pressure. The pressing or crowding together of any objects or persons, especially the pressure of a crowd, as at a public gathering; also the crowd itself; a jam. See Standard Dictionary and U.S. v. Graser-Rothe (C.C.) 164 F. 205.
It is in evidence that, prior to appellant's application of the term to a beverage, crushed fruits, such as crushed strawberries, raspberries, and the like, were well known, but they were regarded by the public as foods, and so classed by the Patent Office. Moreover, this understanding and classification was in harmony with the inherent signification of the term; that is to say, crushed fruit meant to the public a comminuted fruit. The evidence leaves no room for doubt that the term never had been applied to a beverage.
The Trade-Mark Act (Comp. St. Sec. 9490) prohibits the registration of a mark which consists 'merely in words or devices which are descriptive of the goods with which they are used, or of the character or quality of such goods. ' In this provision Congress evidently intended to draw a distinction between descriptive and merely suggestive marks. Marks of the former character, as we many times have declared, are not susceptible of exclusive appropriation, while those of the latter class may be. The difficulty is not so much in the statement of the rule as in its application to the facts of a particular case.
In the case under consideration, while orange crush, as...
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