Sure-Fit Products Co. v. Saltzson Drapery Co.

• Decision Date: 11 April 1958
• Docket Number: Patent Appeal No. 6342.
• Citation: 254 F.2d 158,117 USPQ 295
• Court: U.S. Court of Customs and Patent Appeals (CCPA)
• Parties: SURE-FIT PRODUCTS COMPANY, Appellant, v. SALTZSON DRAPERY COMPANY, Appellee.

117 USPQ 295, 254 F.2d 158 (1958)

SURE-FIT PRODUCTS COMPANY, Appellant, v. SALTZSON DRAPERY COMPANY, Appellee.

Patent Appeal No. 6342.

United States Court of Customs and Patent Appeals.

April 11, 1958.

Leonard L. Kalish, Philadelphia, Pa., for appellant.

Leon Edelson, Philadelphia, Pa., for appellee.

Before JOHNSON, Chief Judge, and O'CONNELL, WORLEY, RICH, and JACKSON retired, Associate Judges.

JOHNSON, Chief Judge.

This is an appeal in an opposition proceeding from the decision of the Assistant Commissioner of Patents, 110 USPQ 371, reversing the decision of the Examiner of Interferences which sustained the opposition and which held that applicant (appellee here) was not entitled to the registration sought.

No testimony was taken by either party, both having stipulated the relevant facts.

Appellee is in the business of manufacturing, selling and distributing draperies and since 1946 has been engaged in the business of manufacturing, selling and distributing ready-made slip covers for various articles of furniture, including studio couches and daveno¹ beds. On March 9, 1950, it adopted as its trade mark for said slip covers the term "Rite-Fit," superimposed in script form upon the pictorial representation of an artist's palette with two paint brushes disposed in the thumb hole. The word "Product," in block letters smaller than the letters which form the term "Rite-Fit," appears immediately beneath the latter term. Appellee has disclaimed the words "Rite-Fit Product" apart from the mark as a whole. Its application for registration of this mark on the principal register under the Lanham Act, 15 U.S.C.A. § 1051 et seq., is the one opposed in this proceeding.

Opposer (appellant here) has used the term "Sure-Fit" as its trademark on and in connection with the sale of its ready-made slip covers since January, 1926. Appellant was the owner of two registrations granted to it on the "Sure-Fit" mark.² The term "Sure-Fit" in the 1950 registration, which is the only one which need be discussed here, is printed in a script similar to the script of appellee's "Rite-Fit" mark.

According to the stipulation, appellant has "extensively advertised, in periodicals having national circulation and in other advertising media," its "Sure-Fit" mark.

The documentary evidence submitted by appellant consists primarily of instruction folders and leaflets for fitting the slip covers on furniture. Several of its exhibits refer to the fact that its mark has been advertised in such publications as "Better Homes and Gardens," "Life," "Collier's," "House & Gardens," and "The New York Times." No advertising specimens were introduced by appellee, though the stipulation indicates that its mark has been advertised.

Also in evidence are eleven third-party registrations containing the word or suffix "Fit," which registrations were introduced by appellee.

Appellee has conceded, for purposes of this proceeding, that, despite its disclaimer of the words "Rite-Fit Product" apart from the mark as a whole, the term "Rite-Fit" constitutes the dominant part of its mark. Furthermore, the parties have stipulated that their respective goods are identical and are sold in competition and that the sole question in issue in this proceeding is that of confusing similarity of the terms "Sure-Fit" and "Rite-Fit."

The Assistant Commissioner, in dismissing the opposition,³ attached little trade mark significance to the word "Fit" in each of the parties' marks, which she described as "in common usage by opposer and others in describing slip covers," and concluded that, except for this weak, common feature, the marks do not look or sound alike.

We are of the opinion that the decision of the Assistant Commissioner is correct and that the opposition must accordingly be dismissed.

In reaching our decision we have been most strongly influenced by the fact that the marks in issue, "Sure-Fit" and "Rite-Fit," are the weakest possible type of mark. The word "Fit," aside from the third-party registrations in evidence, is eminently suitable for use in connection with goods such as ready-made slip covers, where proper fit is of the utmost importance. We need not consider third-party registrations to recognize that the word is often used in connection with the sale of such goods. The word is distinctly descriptive of a characteristic of the merchandise in connection with which it is used. Appellant's use of such phrases in its advertising material as "for perfect, lasting fit," "for triple-sure fit," "smooth, custom-like fit," "a super-fit feature," "fits chairs of this type," "to make smooth fit triple-sure," "insures proper fit" and "this cover fits separate-cushion Cogswells," is indicative of this fact.

The prefixes "Rite" and "Sure," when added to the suffix "Fit," do little, of course, to remove the terms from the descriptive category. "Rite-Fit" is an obvious misspelling of "Right-Fit" and is clearly descriptive of a function of the goods with which the words are used. And though appellant has obtained a registration for this mark on the principal register as a secondary meaning mark, there is nothing in the record to indicate that this mark is not still in the category of a...