Pittsburgh Brewing Co. v. Ruben
| Decision Date | 05 January 1925 |
| Docket Number | No. 1665.,1665. |
| Citation | 3 F.2d 342 |
| Parties | PITTSBURGH BREWING CO. et al. v. RUBEN. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
C. R. Allen, of Washington, D. C., for appellants.
E. C. Brown, of Washington, D. C., for appellee.
Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.
This is an appeal from a decision of the Commissioner of Patents, affirming a decision of the Examiner of Interferences, whereby an application of the appellee for the registration of a trade-mark was granted, and the opposition of the appellants was dismissed.
The mark sought to be registered comprises the word "Tech," printed in white script letters across a plaid background, as a trade-mark in the sale of tobacco in various forms, particularly stogies. The opposition was filed jointly by the Pittsburgh Brewing Company and the Tech Food Products Company, two corporations, although the former is the real party in interest, since the latter is a subsidiary whose entire stock is held by the former company.
The opposition on behalf of the Pittsburgh Brewing Company was based upon the claim that in the year 1906 it had adopted a similar mark, including both the name "Tech" and the plaid background, as its trade-mark in the sale of beer, and that since the enactment of the National Prohibition Act the company had continued the use of the same mark for nonintoxicating malt beverages and carbonated soft drinks. The marks were registered in the latter trade in the years 1919 and 1920, and since then have been continuously used and widely advertised in the sale of the said articles. It is conceded that the company has never dealt in tobacco products of any kind, but it is urged that soft drinks are generally, if not invariably, sold at retail by the same vendors and at the same stands as tobacco products, and that it should be regarded as no more than a reasonable and likely expansion of the brewing company's present business for it to engage also in the sale of tobacco products in the future. The company therefore claimed that the trademark applied for by the appellee for tobacco products would be an invasion of its rights, and result in great injury to it.
This contention was overruled by the Examiner upon the ground that tobacco products are not goods of the same descriptive properties as soft drinks, citing Johnson Educator Food Co. v. Sylvanus Smith & Co., Inc., 37 App. D. C. 107; Hump Hairpin Co. v. De Long Hook & Eye Co., 39 App. D. C. 484; G. & J. Tire Co. v. G. J. G. Motor Car Co., 39 App. D. C. 508; Quaker Oats Co. v. Mother's Macaroni Co., 41 App. D. C. 254; Peter Schoenhofen Brewing Co. v. John Sexton & Co., 41 App. D. C. 510; Rookwood Pottery Co. v. A. Wilhelm Co., 43 App. D. C. 1; Denver Gas & Electric Light Co. v. Alexander Lumber Co., 50 App. D. C. 207, 269 F. 859; Vacuum Oil Co. v. Gargoyle Textile Corporation, 52 App. D. C. 268, 285 F. 1002. This conclusion of the Examiner was approved and affirmed by the Commissioner, and we likewise affirm it upon the authorities cited.
It is true that soft drinks and stogies are frequently kept on sale at the same stands, but this fact does not go far towards determining the "descriptive properties" of the goods, for it is well known that most retail stores deal in a variety of articles of diverse character, and when soft drinks and stogies are considered with reference to their component materials, processes of manufacture, and manner of consumption, it becomes evident that they are not goods of the same descriptive properties, and they are not so regarded in common understanding. Moreover, it is safe to assume that soft drinks and tobacco products are not often, if ever, made or marketed by the same manufacturer. Consequently there is little likelihood in the present instance that a similarity of names will lead purchasers to believe that the articles have a common...
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