Patton Paint Co. v. Sunset Paint Co.
| Decision Date | 04 June 1923 |
| Docket Number | 1545. |
| Citation | 290 F. 323 |
| Parties | PATTON PAINT CO. v. SUNSET PAINT CO. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Submitted January 12, 1923.
Arthur E. Wallace, of Chicago, Ill., for appellee.
Before ROBB and VAN ORSDEL, Associate Justices, and SMITH, Judge of the United States Court of Customs Appeals.
In 1897 the assignor and predecessor in interest of the Patton Paint Company registered as a trade-mark for its paints a serrated representation of the sun, bearing the words 'Patton's Sun-Proof Paints,' the essential parts of which mark were declared to be the arbitrarily selected word 'Sun-Proof' and a conventionalized picture of the sun. In 1915 the company registered in the Patent Office as a trade-mark for its ready mixed paints and painters' materials, a face in a serrated circle, from the upper and lower part of which comet-like rays or streamers projected.
The Sunset Paint Company, of Los Angeles, on the 27th of January 1920, applied for registration of the word 'Sun-Glo,' used by it from 1915 as a trade-mark for its house paints wall paints, painters' materials, and floor varnishes. To that application the Patton Paint Company presented its opposition, to which answer was made, denying the material allegations thereof, and averring as an affirmative defense that in form, appearance, and meaning the trade-mark name 'Sun-Glo' so differed from that of the opposer as not to mislead or confuse the ordinary purchaser. Testimony was taken by deposition and submitted to the Examiner of Interferences on the issue joined.
The Examiner of Interferences held that the applicant, the Sunset Paint Company, was not entitled to registration. On appeal that decision was reversed by the First Assistant Commissioner of Patents, and the opposition of the Patton Paint Company was dismissed. From the decision of the Assistant Commissioner, an appeal was taken by the Patton Paint Company to this court, and in support of that appeal it is contended that the word 'Sun' is a very important feature of the applicant's trade-mark name and that, while the word 'Glo' is not similar to the word 'Proof' in appellant's trade-name, there is such similarity in appearance and sound between 'Sun-Proof' and 'Sun-Glo' that it would cause goods marked 'Sun-Glo' to be mistaken for those of appellant.
We cannot agree with that contention. The purpose of a trade-mark is to indicate, either by itself or by association, the origin or ownership of the merchandise to which it is attached, and any one may attach to his wares or merchandise any symbol of device, not previously appropriated, which will distinguish his product or goods from those of the same...
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