Christo Mfg. Co. v. Christian Moerlein Brewing Co.

District of Columbia

Christo Mfg. Co. v. Christian Moerlein Brewing Co.

265 F. 1010, 49 App. D.C. 370, 1920 U.S. App. LEXIS 1500

CourtDistrict Court, District of Columbia

DecidedMay 3, 1920

DocketNo. 1301

StatusPublished

This text of 265 F. 1010 (Christo Mfg. Co. v. Christian Moerlein Brewing Co.) is published on Counsel Stack Legal Research, covering District Court, District of Columbia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Christo Mfg. Co. v. Christian Moerlein Brewing Co., 265 F. 1010, 49 App. D.C. 370, 1920 U.S. App. LEXIS 1500 (D.D.C. 1920).

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Opinion

SMYTH, Chief Justice.

The Christian Moerlein Brewing Company made application for the registration of the word “Chrismo,” alleging that it had been adopted by it and used continuously in its business since September 25, 1916. The application is opposed by the Christo Manufacturing Company, who is the owner of the trademark “Christo,” registered April 29, 1913. The Examiner of Interferences sustained the opposition. On motion he granted a rehearing, re-examined the question, and decided to adhere to his first view. He was reversed on appeal, and the opposition was overruled.

The resemblance of the two marks is conceded, but it is urged by the applicant that they are not applied to goods of the same descriptive qualities. The applicant’s product is, according to its application, “a nonalcoholic beverage sold as a soft drink.” By agreement a circular issued by the applicant was made part of the record. It says “that the goods of the applicant is a nonintoxicating cereal beverage containing no malt or alcohol.” No testimony was offered by the applicant. On -cross-examination of one of the opposer’s witnesses, it was developed that the opposer manufactured “a near-beer beverage” called “Christo Eager Ale,” which is not intoxicating, and that it had been doing so for over a year prior to the taking of the testimony. If [1011]*1011this was not true, it could easily have been contradicted; but no effort was made by the applicant to do so. Hence we must assume, that it is true. In view of this there is no escape from the conclusion that the goods of the applicant possess the same descriptive qualities as those of the opposer; and, this being so, the opposition must be sustained, and the decision of the Patent Office reversed. Thomas Mfg. Co. v. Æolian Co., 47 App. D. C. 376; Getz Bros. & Co. v. Alaska Packers’ Ass’n, 49 App. D. C. -, 258 Fed. 526.

Reversed.

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SMYTH, Chief Justice.

The Christian Moerlein Brewing Company made application for the registration of the word “Chrismo,” alleging that it had been adopted by it and used continuously in its business since September 25, 1916. The application is opposed by the Christo Manufacturing Company, who is the owner of the trademark “Christo,” registered April 29, 1913. The Examiner of Interferences sustained the opposition. On motion he granted a rehearing, re-examined the question, and decided to adhere to his first view. He was reversed on appeal, and the opposition was overruled.

The resemblance of the two marks is conceded, but it is urged by the applicant that they are not applied to goods of the same descriptive qualities. The applicant’s product is, according to its application, “a nonalcoholic beverage sold as a soft drink.” By agreement a circular issued by the applicant was made part of the record. It says “that the goods of the applicant is a nonintoxicating cereal beverage containing no malt or alcohol.” No testimony was offered by the applicant. On -cross-examination of one of the opposer’s witnesses, it was developed that the opposer manufactured “a near-beer beverage” called “Christo Eager Ale,” which is not intoxicating, and that it had been doing so for over a year prior to the taking of the testimony. If [1011]*1011this was not true, it could easily have been contradicted; but no effort was made by the applicant to do so. Hence we must assume, that it is true. In view of this there is no escape from the conclusion that the goods of the applicant possess the same descriptive qualities as those of the opposer; and, this being so, the opposition must be sustained, and the decision of the Patent Office reversed. Thomas Mfg. Co. v. Æolian Co., 47 App. D. C. 376; Getz Bros. & Co. v. Alaska Packers’ Ass’n, 49 App. D. C. -, 258 Fed. 526.

Reversed.

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Bluebook (online)

265 F. 1010, 49 App. D.C. 370, 1920 U.S. App. LEXIS 1500, Counsel Stack Legal Research, https://law.counselstack.com/opinion/christo-mfg-co-v-christian-moerlein-brewing-co-dcd-1920.

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