MARTIN, Judge.
This appeal is from the decision of the Trademark Trial and Appeal Board affirming the trademark examiner’s refusal to register on the Principal Register for pepper sauce a mark which “consists of a capped bottle of pepper sauce.”
The specimen filed with the application for registration is a bottle having a cylindrical body about 3 inches high and about li/4 inches in diameter, and a tapering portion terminating in a cylindrical neck about y inch in diameter and which, including a threaded mouth portion, is about 2% inches in height. Adjacent the threaded mouth portion is an inverted truncated conical portion somewhat wider at its base than the neck, and which tapers to where it meets said threaded mouth portion. The bottle is topped with an octagonal cap having the name “Mellhenny” appearing in raised letters on its top. The bottle’s bottom is inscribed with appellant’s “Tabasco” trademark. The drawing of that sought to be registered shows only the bottle and cap configuration. Use of the bottle and its accompanying cap in commerce since March 12,1927, has been alleged.
It is stated to be used “by forming a container and cap as shown in the drawing and filling it with pepper sauce * * The board said “That a bottle of a product cannot be a trademark for the product is too obvious to require discussion,” but found that both the examiner and the applicant had treated the application as if it were one to register the configuration of a bottle for use with pepper sauce. Accordingly, the board also so treated the application.
The board’s statement of the principal issue was
“There is left for consideration only the question of whether the conformation of applicant’s capped and unlabeled bottle is distinctive of applicant’s pepper sauce.” [Emphasis ours.]
The answer to that question was that the “record does not support a finding that the bottle and cap — without the label, neck wrapping and, above all, the well-known mark ‘Tabasco’ is a mark identifying and distinguishing applicant’s goods.” Additionally, the board said “There is nothing particularly distinctive about either the shape or size of the bottle or the closure.” The case of Ex parte Haig & Haig Ltd. [the “Pinch” bottle case], 118 USPQ 229, was held not to be controlling in appellant’s favor.
It is, of course, appellant’s position that its bottle is registrable on the Prin[955]*955cipal Register. Its argument proceeds as follows:
1. A bottle may be a trademark, i. e., a symbol or device under § 45, 15 U.S.C.A. § 1127.1 ******The Haig & Haig case supports such a conclusion and to this the Patent Office is agreed.
2. All that an applicant need show under § 45 is that the symbol or device be “adopted and used by * * * [it] to identify its goods and distinguish them from those manufactured or sold by others.”
8. Since appellant has adopted and used the bottle conformation with the intent2 that it identify its goods and distinguish them from those of others, § 45 is satisfied, it is a trademark, and it is entitled to registration unless barred by § 2,15 U.S.C.A. § 1052.
4. The preamble to § 2 states “No trade-mark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it * * [Emphasis ours.]
5. Since the bottle is a trademark and the goods of appellant “may be distinguished” from the pepper sauce of others via such a bottle, it is registrable. Registration may not be refused “on account of its nature,” i. e., merely because it is a bottle.
Appellant argues that the board’s inconsistent rationale is erroneous. Since the statute requires only that a mark be capable of distinguishing the goods of one from those of another, the board’s requirement that the bottle must be proven to be “distinctive” of appellant’s pepper sauce is alleged to be extra-statutory and improper. Such a requirement, it is said, is proper only when registration is sought under Sec. 2(f), which section demands a showing that a mark “has become distinctive of the applicant’s goods in commerce.” [Emphasis ours.]
The solicitor has stated that appellant’s bottle does not have the “obvious attributes” of a trademark and, therefore, proof is required to show that it is. In other words, the position taken by the Patent Office in its brief and at oral argument is that a mere application for registration of a bottle does not make out a prima facie case entitling an applicant to registration of that bottle on the Principal Register. Additionally, the solicitor has questioned the propriety of allowing the registration for pepper sauce of a mark which consists of a bottle of that pepper sauce, restating the board’s position that a bottle of a product cannot be a trademark for the product.
Under the Lanham Act, “any word, name, symbol, or device or any combination thereof” which is distinctive per se and identifies an applicant’s goods and which does not fall within one of the prohibitions of section 2 is entitled to registration on the Principal Register, assuming, of course, procedural requirements are fulfilled. However, this is a far cry from saying that a non-distinctive bottle without an identifying label, containing a product is entitled to registration on the Principal Register, in the absence of convincing evidence that the naked unlabeled bottle containing the product does in fact identify and distinguish applicant’s goods, merely because it is demonstrated that there is and has been for many years the intent to distinguish and identify the goods by that bottle.
It is claimed that a prima facie case has been established by the adoption, use, and intent to distinguish the goods by the bottle regardless of the lack of ap[956]*956parent distinctive features from which it could be assumed that the bottle could identify appellant’s goods in the public’s mind. Under these circumstances appellant states that registration cannot be withheld unless the Patent Office discharges its burden of showing that the bottle is not distinctive and does not identify its goods. No authorities are cited for this proposition and we do not agree with it.
The fallacy in appellant’s position resides in its misconception of the Lanham Act definition of a trademark. Section 45 requires not only the adoption and use of the mark but that it does in fact identify the goods and “distinguish them from those manufactured or sold by others.” This requirement is the basic element of a trademark. The mere intent of an applicant will not convert an inherently non-distinctive bottle into a trademark. Without an applicant’s fulfilling the requirements of section 2(f), registration on the Principal Register is only proper when the subject matter is a distinguishing and identifying trademark per se and obviously does identify the goods and distinguish them from the goods of others. Of course, under section 2(f), if the applicant offers clear and convincing evidence that an otherwise non-distinctive trademark, such as this bottle, has in fact become distinctive of applicant’s goods in commerce and does identify them, registration on the Principal Register is warranted.
In this case, appellant is endeavoring to achieve registration on the Principal Register without such proof.
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MARTIN, Judge.
This appeal is from the decision of the Trademark Trial and Appeal Board affirming the trademark examiner’s refusal to register on the Principal Register for pepper sauce a mark which “consists of a capped bottle of pepper sauce.”
The specimen filed with the application for registration is a bottle having a cylindrical body about 3 inches high and about li/4 inches in diameter, and a tapering portion terminating in a cylindrical neck about y inch in diameter and which, including a threaded mouth portion, is about 2% inches in height. Adjacent the threaded mouth portion is an inverted truncated conical portion somewhat wider at its base than the neck, and which tapers to where it meets said threaded mouth portion. The bottle is topped with an octagonal cap having the name “Mellhenny” appearing in raised letters on its top. The bottle’s bottom is inscribed with appellant’s “Tabasco” trademark. The drawing of that sought to be registered shows only the bottle and cap configuration. Use of the bottle and its accompanying cap in commerce since March 12,1927, has been alleged.
It is stated to be used “by forming a container and cap as shown in the drawing and filling it with pepper sauce * * The board said “That a bottle of a product cannot be a trademark for the product is too obvious to require discussion,” but found that both the examiner and the applicant had treated the application as if it were one to register the configuration of a bottle for use with pepper sauce. Accordingly, the board also so treated the application.
The board’s statement of the principal issue was
“There is left for consideration only the question of whether the conformation of applicant’s capped and unlabeled bottle is distinctive of applicant’s pepper sauce.” [Emphasis ours.]
The answer to that question was that the “record does not support a finding that the bottle and cap — without the label, neck wrapping and, above all, the well-known mark ‘Tabasco’ is a mark identifying and distinguishing applicant’s goods.” Additionally, the board said “There is nothing particularly distinctive about either the shape or size of the bottle or the closure.” The case of Ex parte Haig & Haig Ltd. [the “Pinch” bottle case], 118 USPQ 229, was held not to be controlling in appellant’s favor.
It is, of course, appellant’s position that its bottle is registrable on the Prin[955]*955cipal Register. Its argument proceeds as follows:
1. A bottle may be a trademark, i. e., a symbol or device under § 45, 15 U.S.C.A. § 1127.1 ******The Haig & Haig case supports such a conclusion and to this the Patent Office is agreed.
2. All that an applicant need show under § 45 is that the symbol or device be “adopted and used by * * * [it] to identify its goods and distinguish them from those manufactured or sold by others.”
8. Since appellant has adopted and used the bottle conformation with the intent2 that it identify its goods and distinguish them from those of others, § 45 is satisfied, it is a trademark, and it is entitled to registration unless barred by § 2,15 U.S.C.A. § 1052.
4. The preamble to § 2 states “No trade-mark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it * * [Emphasis ours.]
5. Since the bottle is a trademark and the goods of appellant “may be distinguished” from the pepper sauce of others via such a bottle, it is registrable. Registration may not be refused “on account of its nature,” i. e., merely because it is a bottle.
Appellant argues that the board’s inconsistent rationale is erroneous. Since the statute requires only that a mark be capable of distinguishing the goods of one from those of another, the board’s requirement that the bottle must be proven to be “distinctive” of appellant’s pepper sauce is alleged to be extra-statutory and improper. Such a requirement, it is said, is proper only when registration is sought under Sec. 2(f), which section demands a showing that a mark “has become distinctive of the applicant’s goods in commerce.” [Emphasis ours.]
The solicitor has stated that appellant’s bottle does not have the “obvious attributes” of a trademark and, therefore, proof is required to show that it is. In other words, the position taken by the Patent Office in its brief and at oral argument is that a mere application for registration of a bottle does not make out a prima facie case entitling an applicant to registration of that bottle on the Principal Register. Additionally, the solicitor has questioned the propriety of allowing the registration for pepper sauce of a mark which consists of a bottle of that pepper sauce, restating the board’s position that a bottle of a product cannot be a trademark for the product.
Under the Lanham Act, “any word, name, symbol, or device or any combination thereof” which is distinctive per se and identifies an applicant’s goods and which does not fall within one of the prohibitions of section 2 is entitled to registration on the Principal Register, assuming, of course, procedural requirements are fulfilled. However, this is a far cry from saying that a non-distinctive bottle without an identifying label, containing a product is entitled to registration on the Principal Register, in the absence of convincing evidence that the naked unlabeled bottle containing the product does in fact identify and distinguish applicant’s goods, merely because it is demonstrated that there is and has been for many years the intent to distinguish and identify the goods by that bottle.
It is claimed that a prima facie case has been established by the adoption, use, and intent to distinguish the goods by the bottle regardless of the lack of ap[956]*956parent distinctive features from which it could be assumed that the bottle could identify appellant’s goods in the public’s mind. Under these circumstances appellant states that registration cannot be withheld unless the Patent Office discharges its burden of showing that the bottle is not distinctive and does not identify its goods. No authorities are cited for this proposition and we do not agree with it.
The fallacy in appellant’s position resides in its misconception of the Lanham Act definition of a trademark. Section 45 requires not only the adoption and use of the mark but that it does in fact identify the goods and “distinguish them from those manufactured or sold by others.” This requirement is the basic element of a trademark. The mere intent of an applicant will not convert an inherently non-distinctive bottle into a trademark. Without an applicant’s fulfilling the requirements of section 2(f), registration on the Principal Register is only proper when the subject matter is a distinguishing and identifying trademark per se and obviously does identify the goods and distinguish them from the goods of others. Of course, under section 2(f), if the applicant offers clear and convincing evidence that an otherwise non-distinctive trademark, such as this bottle, has in fact become distinctive of applicant’s goods in commerce and does identify them, registration on the Principal Register is warranted.
In this case, appellant is endeavoring to achieve registration on the Principal Register without such proof. Here we have a little bottle with no features particularly connecting it with the pepper sauce except the pepper sauce itself which contributes only to giving the bottle and sauce together the characteristic of being descriptive. The bottle and its closure have no distinctive features upon which this court could predicate a conclusion that the device has trademark significance per se. Consequently, we believe the board was correct in not approving registration of this device on the Principal Register on this record.
Appellant relies heavily on Ex parte Haig & Haig Ltd., supra, wherein registration of the well-known “Pinch Bottle” as a container for Scotch whiskey was granted. However, there the bottle was registered first on the Supplemental Register3 and achieved registration on the Principal Register because the Assistant Commissioner found
“ * * * that applicant adopted a bottle of ‘original, distinctive and peculiar appearance’ to identify its whisky and distinguish it from the whisky of others; the bottle became known to the trade, to consumers and to the public generally as the ‘Pinched Bottle’ at least as early as 1912; the whisky put up in such bottles became known to the trade, to consumers and to the public generally as ‘Pinched Decanter’ or ‘Pinched Bottle’ whisky; purchasers ordered ‘pinched Decanter’ or ‘Pinched Bottle’ whisky expecting to receive applicant’s whisky; and from about the turn of the century until 1952, there was no way of identifying or ordering applicant’s ‘Pinched Decanter’ or ‘Pinched Bottle’ whisky other than by describing the conformation of the bottle. The public for many years used the description of the conformation or contour of the bottle to ask for the particular brand of applicant’s whisky. This ' description — ‘Pinched’ or ‘Pinch’- — furnished applicant with a word which was formally adopted and used as a word trademark in 1952. * * *”
Obviously, a very different factual situation exists here.
Appellant has introduced in evidence many pictorial exhibits depicting its bottle, upon which is a label featuring applicant’s registered trademark “Tabasco” and also prominently displaying the words “Mellhenny Company.” Also, appellant has introduced into evidence un[957]*957dated unsigned excerpts from affidavits which indicate that headwaiters in various restaurants think that “Tabasco” sauce is superior to other pepper sauces. One affiant stated that customers identified the sauce as that of appellant by means of the bottle. That affidavit is dated January 19, 1900 and refers to appellant’s predecessor bottle.
If the subject matter of this appeal had the required inherent trademark significance to warrant registration without qualifying under section 2(f) such evidence would be unnecessary. By its very introduction, it is admitted that the device is not intrinsically distinctive.
Even if evidence of this type could establish the inherent identifying capabilities of a device to warrant its registration on the Principal Register without complying with the provisions of section 2(f), the evidence introduced in this case does not accomplish that purpose.
Furthermore, this evidence does not convince us that the general public has accepted applicant’s unlabeled bottles per se as identifying appellant’s product so as to warrant registration of the bottle on the Principal Register even under section 2(f).
For these reasons we affirm the decision of the Trademark Trial and Appeal Board.
Affirmed
WORLEY, C. J., concurs in result.