Richard Hellmann v. Oakford & Fahnestock

• Decision Date: 01 February 1932
• Docket Number: Patent Appeal No. 2805.
• Citation: 54 F.2d 423
• Parties: RICHARD HELLMANN, Inc., v. OAKFORD & FAHNESTOCK.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

54 F.2d 423 (1932)

RICHARD HELLMANN, Inc., v. OAKFORD & FAHNESTOCK.

Patent Appeal No. 2805.

Court of Customs and Patent Appeals.

January 4, 1932.

Rehearing Denied February 1, 1932.

Edward S. Rogers and Allen M. Reed, both of Chicago, Ill. (John S. Prescott, of New York City, and Browne & Phelps, of Washington, D. C., of counsel), for appellant.

Wm. J. Peck, of Peoria, Ill., for appellee.

Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges.

BLAND, Associate Judge.

This is an appeal from the decision of the Commissioner of Patents, affirming the decision of the examiner of interferences in sustaining the opposition of appellee, which opposed the registration by appellant of its trade-mark which comprises the notation "Richard Hellmann's Blue Ribbon" placed under the representation of a blue ribbon bow and used for olive relish, tartar sauce, Thousand Island dressing, Russian dressing, and Southern relish or sandwich spread, consisting of mayonnaise with the addition of vegetables, herbs, and condiments.

The opposition is based on the prior use of the words "Blue Ribbon" and a representation of a blue ribbon and a blue ribbon bow used upon several of the items set forth in the application. The proof shows that appellee has used its trade-mark on a large number of food products, including canned fruits and vegetables, and a large list of food articles sold in grocery stores since as far back as 1891; that on several occasions it has caused its "Blue Ribbon" trade-mark to be registered, the last of which registrations was filed in 1913, under which it has sold such products as salad dressing, olive oil, pickles, chow-chow, olives, prepared mustard, sandwich filler, French dressing, Worchestershire sauce, and Thousand Island dressing. It appears from the record that the particular kind of salad dressing known as Thousand Island dressing was not sold by appellee prior to the date of adoption and use of the trade-mark by appellant on Thousand Island dressing.

The substance of appellant's contentions here is that the words "Blue Ribbon" and the picture of a blue ribbon are descriptive and incapable of an exclusive appropriation, and that unless used as a composite mark are common property in the trade citing Pabst Brewing Co. v. Decatur Brewing Co. (C. C. A.) 284 F. 110, and France Milling Co. v. Washburn-Crosby Co., Inc. (C. C. A.) 7 F. (2d) 304; that the numerous registrations in the Patent Office of the words "Blue Ribbon" and the representation of a blue ribbon for food products show that such words and representations are common property; that the term "Blue Ribbon" is publici juris; and that under certain decisions of the courts, appellee is only entitled to the exclusive use of its "Blue Ribbon" trade-mark upon the exact articles upon which it had used such mark prior to appellant's adoption and use of its marks on its goods. Appellant contends also that, upon this record, it is shown that appellant's use of its "Blue Ribbon" mark was to indicate quality and not origin, and that because of such fact confusion of origin was unlikely.

The examiner of interferences, referring to the commonplace character of the "Blue Ribbon" mark, said: "While it is true, that the mark Blue Ribbon has long been used by many traders for various kinds of food products and may not, therefore, be recognized as possessing a large measure of inclusiveness, it can not however be regarded as so lacking in distinctiveness as to be wholly incapable of indicating origin. Otherwise, registration to the applicant would have to be refused on that ground."

The Commissioner of Patents, in affirming the decision of the examiner of interferences, said: "There is some contention on behalf of the applicant that the words `Blue Ribbon' are descriptive of the goods and not registrable to anyone. It may be noted, however, that neither party is seeking registration of just these words but each has the pictorial representation of a blue ribbon and also a blue ribbon tied in a bow and there is no basis for holding that such a trade mark is descriptive of the goods upon which it is used. While the applicant has noted the wide use of the words `Blue Ribbon' and the representations of such a ribbon by others prior to the opposer's adoption of its mark yet the decision in American Fruit Growers, Inc. v. Michigan Fruit Growers, Inc., 393 O. G. 789 38 F.(2d) 696, 17 C. C. P. A. 906, is to the effect that the question...