Application of Lepage's Incorporated (A Subsidiary of the Papercraft Corporation, and Assignee of Johnson & Johnson)

312 F.2d 455, 50 C.C.P.A. 852, 136 U.S.P.Q. (BNA) 170, 1963 CCPA LEXIS 432

• Court: Court of Customs and Patent Appeals
• Decided: January 16, 1963
• Docket: Patent Appeal 6855, 6856
• Status: Published

Opinions

MARTIN, Judge.

This consolidated appeal is from the decision of the Trademark Trial and Appeal Board affirming the refusal of the examiner to register on the Principal Register a mark¹ consisting of a dispensing container having a generally cylindrical centrally constricted body and cap and having a truncated cylindrical tip, and a mark² which has the same overall configuration as the one just discussed but with some slight variations.

It is unnecessary to delineate in more detail the issues presented here because we believe that the appeals should be dismissed for the reason that appellant has failed to fulfill the minimum requirements of the statutes³ for perfecting appeals in this court.

Appellant’s notice of appeal reads as follows:

“NOTICE OF APPEAL TO UNITED STATES COURT OF CUSTOMS AND PATENT APPEALS, JUNE 21, 1961

“Sirs:

“Pursuant to Section 2(f)⁴ of the Trademark Act of 1946, as amended, applicant hereby appeals to the United States Court of Customs and Patent Appeals from the decisions of the Trademark Trial and Appeal Board dated April 3, 1961 and May 22, 1961, refusing registration of the mark shown in applications Serial Nos. 40,299 and 62,303, filed October 16, 1957 and November 12, 1958, respectively, on the Principal Register under the Trademark Act of 1946.”

As is apparent, appellant failed to indicate any reasons of appeal whatsoever.

It is our opinion that 35 U.S.C. § 142, in stating:

“* * * the appellant * * * shall file * * * his reasons of appeal, specifically set forth in writing * * [Emphasis ours.]

contemplates more in a notice of appeal than a mere statement of applicant’s appeal from the decision of the Trademai'k Trial and Appeal Board refusing registration of the mark. This position is reenforced by the wording of section 143, wherein it states:

“ * * * in an ex parte case the Commissioner shall furnish the court with the grounds of the decision of the Patent Office, in writing, touching all the points involved, by the reasons of appeal.” [Emphasis ours.]

and in section 144, wherein it states:

“The United States Court of Customs and Patent Appeals, on petition, shall hear and determine such appeal on the evidence produced before the Patent Office, and the decision shall be confined to the points set forth in the reasons of appeal. * * * ” [Emphasis ours.]

It seems to us that if all that was necessary to be done to perfect an appeal was that which was done here, there exist many superfluous words in sections 142,143 and 144.

The solicitor raised this question here for the first time in his brief on appeal. However, since this is a jurisdictional matter it is proper to l'aise it at any time. In re Wesselman, 127 F.2d 311, 29 CCPA 988. For these reasons we dismiss these appeals.⁵

Dismissed.

1 . Application Serial No. 40,299 (PA 6855) filed October 16, 1957 for liquid glue, mucilage and adhesive cements. Use in commerce is alleged since 1926.

2 . Application Serial No. 62,303 (PA 6856), filed November 12, 1958, for liquid glue, mucilage and adhesive cements. Use in commerce is alleged since 1926.

3 . 15 TJ.S.C.A. § 1071; 35 U.S.C. § 142; 35 U.S.C. § 143; 35 U.S.C. § 144. 15 U.S.C. § 1071 has been amended by Public Law 87-772 so that it now includes specifically the requirements of 35 U.S.C. §§ 142, 143, 144.

4 . We assume that appellant intended to write section 21 of the Trade-Mark Act of 1946 instead of 2(f) since section 21 is written in its Consolidated Petition on appeal.

5 . Since we have found that we do not have jurisdiction of this' matter we will not rule upon the request of appellant to file certain papers nor the motion of the Commissioner of Patents to change the title of the appeals.