Galena Mfg. Co. v. Coe

130 F.2d 437, 76 U.S. App. D.C. 174, 54 U.S.P.Q. (BNA) 69, 1942 U.S. App. LEXIS 3118

Opinion

PER CURIAM.

The District Court refused to enjoin the Commissioner of Patents from cancelling¹ appellant Galena Manufacturing Company’s trade-mark registrations Nos. 46,026 and 51,465, which cover use of the word Superior in connection with lubricating oils and greases. Since the word is descriptive, it was subject to registration only if it “was in actual and exclusive use as a trade-mark of the applicant, or his predecessors from whom he derived title, for ten years next preceding February 20, 1905.”² The Commissioner of Patents and the District Court found that appellant’s use of the word in connection with oils and greases, during the critical period, was not exclusive; specifically, that Superior Oil Works, Limited, the predecessor of appellee Superior Oil Works, made similar use of the word during the same period. Appellant contests that finding. The evidence in support of the finding depends upon memory of events long past, and is more or less contradicted by circumstantial evidence regarding the relative sizes and shapes of certain stencils and containers; on the other hand, it is more or less confirmed by the inherent likelihood that a concern with Superior in its name would use Superior as a mark. We think the finding not unreasonable. Appellant’s other contentions are without merit.

Appellee’s several motions are denied.

Affirmed.

STEPHENS, Associate Justice, concurs in the result.

Footnotes

1

U.S.C.A., Tit. 15, § 93. Cf. United States ex rel. Baldwin Co. v. Robertson, 265 U.S. 168, 180, 44 S.Ct. 508, 68 L.Ed. 962; Alexandrine v. Coe, 63 App. D.C. 227, 71 F.2d 348.

2

U.S.C.A., Tit. 15, § 85.