Dunlap & Co. v. Bettmann-Dunlap Co.

D.C. Circuit

Dunlap & Co. v. Bettmann-Dunlap Co.

23 F.2d 772, 57 App. D.C. 351, 1927 U.S. App. LEXIS 3230

CourtCourt of Appeals for the D.C. Circuit

DecidedDecember 5, 1927

DocketNo. 1972

StatusPublished

Cited by3 cases

This text of 23 F.2d 772 (Dunlap & Co. v. Bettmann-Dunlap 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.

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Dunlap & Co. v. Bettmann-Dunlap Co., 23 F.2d 772, 57 App. D.C. 351, 1927 U.S. App. LEXIS 3230 (D.C. Cir. 1927).

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Opinion

VAN ORSDEL, Associate Justice.

Appellant, Dunlap & Co., opposes the registration of three trade-marks by appellee, the Bettmann-Dunlap Company, consisting of the word “Dunlap” displayed on different backgrounds. The opposer claimed use of a similar mark upon hats, caps, clothing, parasols, umbrellas, women’s headwear, neckties, mufflers, leather and fabric gloves, furs and scarfs. The applicant’s trade-marks are used on shoes.

The Examiner of Interferences held that the goods on which the marks are used are not of the same descriptive properties, hut refused registration of the mark on the ground that the dominating feature of applicant’s mark is the word “Dunlap,” and, being the name of opposer company, it could not bo appropriated as a trade-mark by the applicant. Erom this decision the applicant took no appeal; but the opposer appealed to the Commissioner on the ground that the Examiner had erred in holding that the goods were not of the same descriptive properties.

The Commissioner refused to review the case on the ground that, since the entire proceeding is to prevent registration, and the Examiner sustained the oppositions upon one of the grounds urged by the opposer, it amounts to a denial of registration, and the opposer in fact has accomplished the result sought, and is accordingly without right of appeal. If the applicant had appealed, then the opposer might have, by cross-appeal, raised the question which he now urges, namely, the similarity of the goods on which the marks are used. But, since there was no appeal by the applicant, his right of registration is as effectively barred as if the judgment had been to sustain the oppositions.

The decision of the Commissioner is affirmed.

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VAN ORSDEL, Associate Justice.

Appellant, Dunlap & Co., opposes the registration of three trade-marks by appellee, the Bettmann-Dunlap Company, consisting of the word “Dunlap” displayed on different backgrounds. The opposer claimed use of a similar mark upon hats, caps, clothing, parasols, umbrellas, women’s headwear, neckties, mufflers, leather and fabric gloves, furs and scarfs. The applicant’s trade-marks are used on shoes.

The Examiner of Interferences held that the goods on which the marks are used are not of the same descriptive properties, hut refused registration of the mark on the ground that the dominating feature of applicant’s mark is the word “Dunlap,” and, being the name of opposer company, it could not bo appropriated as a trade-mark by the applicant. Erom this decision the applicant took no appeal; but the opposer appealed to the Commissioner on the ground that the Examiner had erred in holding that the goods were not of the same descriptive properties.

The Commissioner refused to review the case on the ground that, since the entire proceeding is to prevent registration, and the Examiner sustained the oppositions upon one of the grounds urged by the opposer, it amounts to a denial of registration, and the opposer in fact has accomplished the result sought, and is accordingly without right of appeal. If the applicant had appealed, then the opposer might have, by cross-appeal, raised the question which he now urges, namely, the similarity of the goods on which the marks are used. But, since there was no appeal by the applicant, his right of registration is as effectively barred as if the judgment had been to sustain the oppositions.

The decision of the Commissioner is affirmed.

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23 F.2d 772, 57 App. D.C. 351, 1927 U.S. App. LEXIS 3230, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunlap-co-v-bettmann-dunlap-co-cadc-1927.

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