E. P. Kirkendall & Co. v. Mayer Boot & Shoe Co.

D.C. Circuit

E. P. Kirkendall & Co. v. Mayer Boot & Shoe Co.

47 App. D.C. 245, 1918 U.S. App. LEXIS 2402

CourtCourt of Appeals for the D.C. Circuit

DecidedJanuary 7, 1918

DocketNo. 1124

StatusPublished

This text of 47 App. D.C. 245 (E. P. Kirkendall & Co. v. Mayer Boot & Shoe 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

E. P. Kirkendall & Co. v. Mayer Boot & Shoe Co., 47 App. D.C. 245, 1918 U.S. App. LEXIS 2402 (D.C. Cir. 1918).

Pincite

Opinion

Mr. Justice Robb

delivered the opinion of the Court:

The Patent Office, upon the petition of appellee, canceled the word “Dri-Shod,” which it previously had registered for appellant as a trademark for boots and shoes, and this appeal followed.

Prom the petition for cancelation the following facts appear: Appellee is a corporation, with its principal place of business in Milwaukee, "Wisconsin. Since about 1898 it has sold shoes under the trademark “Dry-Socks.” This mark appellee applied to have, registered, but the application was refused on the ground that it is descriptive. It is alleged that appellant's mark so nearly resembles that of appellee as to cause confusion in the public mind, to appellee’s injury. To this petition appellant filed a general denial. Testimony was taken by appellee establishing the a verments of its petition and that it had extensively advertised the “Dry-Socks” shoe in the West through the medium of newspapers, magazines, and trade journals.

Appellant also is a eorjDoration, with its principal place of business at Omaha, Nebraska, and the earliest date claimed for the adoption of “Dri-Shod” is 1915.

We agree with the Patent Office that.these marks are altogether too much alike to entitle appellant to registration. They not only sound alike, but obviously arc, intended, when applied to shoes, to convey the same idea. It is the old story of an attempt by a rival firm to reap where it has not sown, and certainly such attempts ought not to be sanctioned by the Patent Office.

The decision was right, and is affirmed. Affirmed.

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

Mr. Justice Robb

delivered the opinion of the Court:

The Patent Office, upon the petition of appellee, canceled the word “Dri-Shod,” which it previously had registered for appellant as a trademark for boots and shoes, and this appeal followed.

Prom the petition for cancelation the following facts appear: Appellee is a corporation, with its principal place of business in Milwaukee, "Wisconsin. Since about 1898 it has sold shoes under the trademark “Dry-Socks.” This mark appellee applied to have, registered, but the application was refused on the ground that it is descriptive. It is alleged that appellant's mark so nearly resembles that of appellee as to cause confusion in the public mind, to appellee’s injury. To this petition appellant filed a general denial. Testimony was taken by appellee establishing the a verments of its petition and that it had extensively advertised the “Dry-Socks” shoe in the West through the medium of newspapers, magazines, and trade journals.

Appellant also is a eorjDoration, with its principal place of business at Omaha, Nebraska, and the earliest date claimed for the adoption of “Dri-Shod” is 1915.

We agree with the Patent Office that.these marks are altogether too much alike to entitle appellant to registration. They not only sound alike, but obviously arc, intended, when applied to shoes, to convey the same idea. It is the old story of an attempt by a rival firm to reap where it has not sown, and certainly such attempts ought not to be sanctioned by the Patent Office.

The decision was right, and is affirmed. Affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

47 App. D.C. 245, 1918 U.S. App. LEXIS 2402, Counsel Stack Legal Research, https://law.counselstack.com/opinion/e-p-kirkendall-co-v-mayer-boot-shoe-co-cadc-1918.