Weco Products Co. v. Milton Ray Co., Patent Appeals No. 4880.

• Decision Date: 26 June 1944
• Docket Number: Patent Appeals No. 4880.
• Parties: WECO PRODUCTS CO. v. MILTON RAY CO.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

31 CCPA 1214, 143 F.2d 985 (1944)

WECO PRODUCTS CO. v. MILTON RAY CO.

Patent Appeals No. 4880.

Court of Customs and Patent Appeals.

June 26, 1944.

Edward S. Rogers, William T. Woodson, and James H. Rogers, all of Chicago, Ill., and Thomas L. Mead, Jr., of Washington, D. C., for appellant.

A. W. Murray, of Chicago, Ill., for appellee.

Before GARRETT, Presiding Judge, and BLAND, HATFIELD, and JACKSON, Associate Judges.

BLAND, Associate Judge.

Appellant-applicant applied in the United States Patent Office for registration of its trade-mark "VRAY" for dentifrices. Appellee opposed the registration, showing prior use of the term "DR. RAY", written in slanting script across the representation of a black and white target, for goods some of which were identical — dentifrices.

The Examiner of Trade-mark Interferences sustained the opposition and adjudged that the appellant was not entitled to registration of its mark; and upon appeal to the Commissioner of Patents, the examiner's decision was affirmed. 56 USPQ 236. Appellant has here appealed from the decision of the commissioner.

It appears from the record that in 1929 V. Vivaudou, Inc., registered the trademark "VRAI" (French for "true") for goods similar to those involved here, which mark was assigned to appellant on July 11, 1940. In August 1940 appellant began use, in interstate commerce, of its mark "VRAY" upon dentifrices.

With reference to the mark "VRAI" the examiner had the following to say: "It is noted that applicant produced evidence relating to a purpored sic assignment of the mark `Vrai' by V. Vivaudou, Inc. While applicant filed notice under Patent Rule 154(e) that it would rely on the registration of the mark purportedly assigned, a copy of such registration has not been introduced. Further, such assignment was not alleged in the answer and applicant has made no contentions as to prior use on the strength thereof in its brief or argument. Aside from this lack of reliance on these proofs, the testimony indicates that V. Vivaudou, Inc. did not sell or transfer any tangible property, any lists of customers, formulas, or business at the time of the purported assignment. Accordingly, the assignment is considered to constitute an abandonment of the mark, and any use thereof by the V. Vivaudou company is deemed not to inure to applicant's benefit." The Penetrine Corp. v. Plough, Inc., 121 F.2d 539, 28 C.C.P.A., Patents, 1307, 532 O.G. 512.

In appellant's reasons of appeal the subject matter of the above-quoted portion of the examiner's decision is not mentioned, and the commissioner gave no consideration to it. Therefore, we shall not consider it.

Appellant also here attempts to raise the question of unclean hands on the part of appellee, contending in substance that the term "DR. RAY" is a misrepresentation, since no doctor is connected with appellee's business. This question, according to the record, was not presented to the commissioner and is not referred to in the reasons of appeal in this court. We accordingly give it no consideration.

The issues seem to be confined to the questions of similarity of the marks and questions ancillary thereto, and the character of the goods upon which they are used. Some of the goods of the respective parties are identical. While there is a difference in appearance between the mark "VRAY" and the "DR. RAY" mark — the term "Dr. RAY" being superimposed on a target, the word "RAY" in appellee's mark is also found in its entirety in the mark of appellant, although the "r" is not there capitalized. The two marks are quite similar in sound. It is our view that they are so similar, in a trade-mark sense, as to give rise to a...