Application of Sun Oil Company

Customs and Patent Appeals

Application of Sun Oil Company

426 F.2d 401, 57 C.C.P.A. 1147

CourtCourt of Customs and Patent Appeals

DecidedMay 28, 1970

DocketPatent Appeal 8320

StatusPublished

Cited by11 cases

This text of 426 F.2d 401 (Application of Sun Oil Company) is published on Counsel Stack Legal Research, covering Court of Customs and Patent Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Application of Sun Oil Company, 426 F.2d 401, 57 C.C.P.A. 1147 (ccpa 1970).

Pincite

Opinions

ALMOND, Judge.

Sun Oil Company brings this appeal from the decision of the Trademark Trial and Appeal Board, 155 USPQ 600 (1967), affirming the examiner’s refusal to allow appellant’s application to register “CUSTOM-BLENDED” for gasoline ¹ on the ground that the mark is merely decriptive of applicant’s goods within the meaning of section 2(e) (1) of the Trademark Act of 1946 (15 U.S.C. § 1052(e) (1)) and because the evidence submitted has not clearly established a secondary meaning, denoting that the mark has become distinctive of appellant’s goods, within section 2(f) of the Act (15 U.S.C. § 1052(f)).

The application seeking registration on the Principal Register alleges use since 1956. The mark is displayed on special pumps, called “blending pumps,” at appellant’s service stations. The application is designated a continuation of an earlier application filed July 13, 1961, in which registration on the Principal Register was sought for the same mark for gasoline and refused by the Trademark Trial and Appeal Board on the ground that the mark was merely a descriptive connotation to purchasers of applicant’s goods.²

In his Answer, the examiner predicated refusal of registration on the ground that CUSTOM-BLENDED is merely descriptive of appellant’s goods within the meaning of section 2(e) (1) because it is so highly descriptive of appellant’s blended gasoline that it is incapable of becoming distinctive as claimed. It was the examiner’s opinion that the term CUSTOM-BLENDED merely informs purchasers that various grades of gasoline from appellant’s blending pumps are custom blended for them; that the word “custom” is commonly used to indicate things made to order; that it has very little trademark significance when used in connection with blended gasoline; that appellant is not entitled to exclusive appropriation of this term, which so aptly describes custom-blended gasoline; and that the conclusion derived from surveys conducted by appellant is that purchasers who are acquainted with appellant’s Blue Sunoco gasoline know that such gasoline is custom blended.

In affirming refusal of registration, the board stated that granted that the generic terms for appellant’s blended gasolines are pump-blended and multplegrade gasolines, there is no question that “‘CUSTOM-BLENDED’ has a merely [403]*403descriptive significance in that it will immediately indicate to patrons of applicant’s service stations that the various grades of gasoline dispensed thereat are custom blended to their needs and requirements”; that in view thereof and the decision on applicant’s prior application, it was incumbent upon applicant to show that the facts and circumstances since that decision have changed in that “ ‘CUSTOM-BLENDED’ now serves as an indication of origin of applicant’s gasoline to the general public”; that the case, therefore, turned upon the sufficiency of applicant’s evidence in that regard; that “the only definite conclusion that can be drawn from the surveys is that purchasers who are acquainted with applicant’s ‘SUNOCO’ gasoline know that such gasoline is custom blended”; that this manifestly does not support applicant’s assertion that CUSTOM-BLEND has acquired a secondary meaning as an indication of origin for gasoline, and that upon the record presented CUSTOM-BLENDED does not possess anything “other than a descriptive significance to purchasers of gasoline.”

We have given a synoptic analysis of the board’s able, well-considered and exhaustive opinion without reiterating essential facts of record. These facts are detailed in their essence and relevancy and supportive of the board’s conclusions so clearly and aptly enunciated in its decision. We, therefore, incorporate herein by reference the opinion of the board and affirm its refusal of registration. The decision of the Trademark Trial and Appeal Board is, accordingly, affirmed.

Affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

ALMOND, Judge.

Sun Oil Company brings this appeal from the decision of the Trademark Trial and Appeal Board, 155 USPQ 600 (1967), affirming the examiner’s refusal to allow appellant’s application to register “CUSTOM-BLENDED” for gasoline ¹ on the ground that the mark is merely decriptive of applicant’s goods within the meaning of section 2(e) (1) of the Trademark Act of 1946 (15 U.S.C. § 1052(e) (1)) and because the evidence submitted has not clearly established a secondary meaning, denoting that the mark has become distinctive of appellant’s goods, within section 2(f) of the Act (15 U.S.C. § 1052(f)).

The application seeking registration on the Principal Register alleges use since 1956. The mark is displayed on special pumps, called “blending pumps,” at appellant’s service stations. The application is designated a continuation of an earlier application filed July 13, 1961, in which registration on the Principal Register was sought for the same mark for gasoline and refused by the Trademark Trial and Appeal Board on the ground that the mark was merely a descriptive connotation to purchasers of applicant’s goods.²

In his Answer, the examiner predicated refusal of registration on the ground that CUSTOM-BLENDED is merely descriptive of appellant’s goods within the meaning of section 2(e) (1) because it is so highly descriptive of appellant’s blended gasoline that it is incapable of becoming distinctive as claimed. It was the examiner’s opinion that the term CUSTOM-BLENDED merely informs purchasers that various grades of gasoline from appellant’s blending pumps are custom blended for them; that the word “custom” is commonly used to indicate things made to order; that it has very little trademark significance when used in connection with blended gasoline; that appellant is not entitled to exclusive appropriation of this term, which so aptly describes custom-blended gasoline; and that the conclusion derived from surveys conducted by appellant is that purchasers who are acquainted with appellant’s Blue Sunoco gasoline know that such gasoline is custom blended.

In affirming refusal of registration, the board stated that granted that the generic terms for appellant’s blended gasolines are pump-blended and multplegrade gasolines, there is no question that “‘CUSTOM-BLENDED’ has a merely [403]*403descriptive significance in that it will immediately indicate to patrons of applicant’s service stations that the various grades of gasoline dispensed thereat are custom blended to their needs and requirements”; that in view thereof and the decision on applicant’s prior application, it was incumbent upon applicant to show that the facts and circumstances since that decision have changed in that “ ‘CUSTOM-BLENDED’ now serves as an indication of origin of applicant’s gasoline to the general public”; that the case, therefore, turned upon the sufficiency of applicant’s evidence in that regard; that “the only definite conclusion that can be drawn from the surveys is that purchasers who are acquainted with applicant’s ‘SUNOCO’ gasoline know that such gasoline is custom blended”; that this manifestly does not support applicant’s assertion that CUSTOM-BLEND has acquired a secondary meaning as an indication of origin for gasoline, and that upon the record presented CUSTOM-BLENDED does not possess anything “other than a descriptive significance to purchasers of gasoline.”

We have given a synoptic analysis of the board’s able, well-considered and exhaustive opinion without reiterating essential facts of record. These facts are detailed in their essence and relevancy and supportive of the board’s conclusions so clearly and aptly enunciated in its decision. We, therefore, incorporate herein by reference the opinion of the board and affirm its refusal of registration. The decision of the Trademark Trial and Appeal Board is, accordingly, affirmed.

Affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

426 F.2d 401, 57 C.C.P.A. 1147, Counsel Stack Legal Research, https://law.counselstack.com/opinion/application-of-sun-oil-company-ccpa-1970.

Opinions

Related

Cite This Page — Counsel Stack