Application of J. Hungerford Smith Co

279 F.2d 694, 47 C.C.P.A. 1077

• Court: Court of Customs and Patent Appeals
• Decided: June 29, 1960
• Docket: Patent Appeal 6570
• Status: Published

Opinions

WORLEY, Chief Judge.

This appeal is from the decision of the Trademark Trial and Appeal Board of the United States Patent Office affirming the decision of the Examiner of Trademarks refusing appellant’s application for registration of “Burgundy” for use on a soft drink syrup, on the principal register under the provisions of Section 2(f) of the Lanham Act, 15 U.S.C.A. § 1052(f).

Appellant originally sought registration without reference to Section 2(f). However, after repeated rejections by the -examiner on the ground that “Burgundy” ■denotes a flavor designation and is therefore descriptive, appellant amended its application and sought registration under .'Section 2(f), and presented evidence purporting to show that the mark had become distinctive of its goods in commerce. That evidence was held by the ■examiner and the board to be insufficient.

The record shows that appellant began using the word “Burgundy” as a trademark for processed cherries in 1937, and in 1940 obtained Registration No. 376,-.687 for that mark as applied to “processed cherries preserved in syrup.” Appellant claims to have used “Burgundy” as a trademark on flavoring syrup continuously since 1939, the syrup in question having been produced from “Burgundy” processed cherries.

In holding that “Burgundy” has not 'been shown to have become distinctive ■of appellant’s flavoring syrup, the board relied primarily on the ground that appellant has not used the word on such goods as a trademark but only as a flavor designation. That conclusion appears to be borne out by the two specimens submitted with appellant’s application. On both specimens “J. Hungerford Smith’s” and “J H S” appear in the largest lettering. The first specimen bears in smaller letters additional words “Imitation Burgundy Cherry Syrup,” while the second bears the words “CreamPak Brand ‘Burgundy’ Cherry Flavoring Syrup” with “Reg. U. S. Pat. Off.” appearing beneath the quoted word “Burgundy.”

Regarding the first specimen, use of the word “Imitation” makes it clear that “Burgundy” is not used in a trademark sense. Obviously the intended meaning is not that the syrup is an imitation of a trademarked product, but that it imitates the Burgundy cherry flavor.

On the second specimen, as above noted, the word “Burgundy” appears in quotations with the notation “Reg. U. S. Pat. Off.” printed below. Since “Burgundy” has not been registered for syrup, the notation presumably refers to the registration of that word for cherries. The meaning, therefore, is that the syrup is made from appellant’s “Burgundy” cherries. The word “Burgundy” therefore is not used as a trademark for the syrup but to identify a principal ingredient. Use of the words “CreamPak Brand” in addition to “J. Hunger-ford Smith’s” serves as a further indication that “Burgundy” is not used in the sense of a trademark for the syrup.

We agree with the Patent Office that, so far as the record shows, appellant has not used “Burgundy” as a trademark for a soft drink syrup, but only as a flavor designation. It follows that registration was properly refused, and it is unnecessary to consider the further holding that “Burgundy” is descriptive of appellant’s product and has not been shown to have acquired a secondary meaning.

The decision is affirmed.

Affirmed.