Ault & Wiborg Co. v. Jaenecke Ault Co.

D.C. Circuit

Ault & Wiborg Co. v. Jaenecke Ault Co.

269 F. 672, 50 App. D.C. 156, 1920 U.S. App. LEXIS 1900

CourtCourt of Appeals for the D.C. Circuit

DecidedDecember 6, 1920

DocketNo. 1347

StatusPublished

This text of 269 F. 672 (Ault & Wiborg Co. v. Jaenecke Ault Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ault & Wiborg Co. v. Jaenecke Ault Co., 269 F. 672, 50 App. D.C. 156, 1920 U.S. App. LEXIS 1900 (D.C. Cir. 1920).

Pincite

Opinion

VAN ORSDEL, Associate Justice.

Appellee, Jaenecke Ault Company, petitioned the Commissioner of Patents to cancel the trade-mark of appellant, the Ault & Wiborg Company, consisting of the word “Surprise” as a trade-mark for printing ink. From an order sustaining the petition and directing the cancellation of the mark, this appeal was taken.

[ 1J Registrant relied upon its registration date, August 1, 1911, contending that appellee had failed to establish any use of its mark in interstate commerce prior to that date. It is urged that the most the testimony establishes as to trade-mark use by appellee .company is that ink bearing the mark “Surprise” was shipped by it from its factory at Newark, N. J., to its branch office at Chicago, 111. Of course, the mere shipment of goods bearing the mark from the factory to a distributing branch in another state would, not constitute use of the marie in interstate commerce within the Trade-Mark Act (21 Stat. 502). ‘

[2] While none of the persons to whom goods were alleged to have been shipped by appellee company have been produced, which is ordinarily regarded as • the most convincing proof of the use of a mark in commerce, the evidence, we think, establishes the adoption of the mark by appellee company, or its predecessor in business, about 1906 or 1907. The books of the company show orders for Surprise ink and shipments made to various parties as early as January, 1910. Labels were introduced which were shown to have been used in 1909.

We agree with the Commissioner that appellee has established the use of the mark in question prior to appellant’s date of registration or the date of use alleged in its application.

The decision of the Commissioner of Patents is affirmed, and the clerk is directed to certify these proceedings as by law required.

Affirmed.

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VAN ORSDEL, Associate Justice.

Appellee, Jaenecke Ault Company, petitioned the Commissioner of Patents to cancel the trade-mark of appellant, the Ault & Wiborg Company, consisting of the word “Surprise” as a trade-mark for printing ink. From an order sustaining the petition and directing the cancellation of the mark, this appeal was taken.

[ 1J Registrant relied upon its registration date, August 1, 1911, contending that appellee had failed to establish any use of its mark in interstate commerce prior to that date. It is urged that the most the testimony establishes as to trade-mark use by appellee .company is that ink bearing the mark “Surprise” was shipped by it from its factory at Newark, N. J., to its branch office at Chicago, 111. Of course, the mere shipment of goods bearing the mark from the factory to a distributing branch in another state would, not constitute use of the marie in interstate commerce within the Trade-Mark Act (21 Stat. 502). ‘

[2] While none of the persons to whom goods were alleged to have been shipped by appellee company have been produced, which is ordinarily regarded as • the most convincing proof of the use of a mark in commerce, the evidence, we think, establishes the adoption of the mark by appellee company, or its predecessor in business, about 1906 or 1907. The books of the company show orders for Surprise ink and shipments made to various parties as early as January, 1910. Labels were introduced which were shown to have been used in 1909.

We agree with the Commissioner that appellee has established the use of the mark in question prior to appellant’s date of registration or the date of use alleged in its application.

The decision of the Commissioner of Patents is affirmed, and the clerk is directed to certify these proceedings as by law required.

Affirmed.

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Bluebook (online)

269 F. 672, 50 App. D.C. 156, 1920 U.S. App. LEXIS 1900, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ault-wiborg-co-v-jaenecke-ault-co-cadc-1920.