Mr. Justice Van Oksdel
delivered the opinion of the Court:
This appeal is from the decision of the Commissioner of Patents denying the application of appellant for the registration of the following trademark for “hot air and combined hot air and hot water heaters and furnaces:”
[112]*112The Commissioner tendered registration of the figure with the words, “Moistair Heating System,” eliminated, which appellant refused, — hence this appeal. The reason assigned by the Commissioner is that “applicant has an exclusive right to all these features except the phrase, ‘Moistair Heating System/ and it has in common with the public generally also the right to use, but not to register, these descriptive words.”
The Trademark Act of February 20, 1905 (33 Stat. at L. 724, chap. 592, Comp. Stat. 1916, sec. 9490) in sec. 5 among other things, provides: “That trademarks which are identical with a registered or known trademark owned and in use by another, and appropriated to merchandise of the same descriptive properties, or which so nearly resemble a registered or known trademark owned and in use by another, and appropriated to merchandise1 of the same descriptive properties, as to be likely to cause confusion or mistake in the mind of the public, or to deceive purchasers, shall not be registered: Provided, That no mark which consists merely in the name of an individual, firm, corporation, or association, not written, printed, impressed, or woven in some particular or distinctive manner or in association with a portrait of the individual, or merely in words or devices which are descriptive of the goods with which they are used, or of the character or quality of such goods, or merely a geographical name or term, shall be registered under the terms of this act.”
It must be conceded that the words, “Moistair Heating System,” are descriptive of the merchandise on which the mark is used and for which registration is sought. These words, standing alone, are clearly unregisterable, and are oj)en to public use, limited only by the principles involved in unfaih eompetition. If these words constitute an essential feature of the trademark, it is sufficient to defeat registration. A mark certain features of which are merely suggestive of character or quality is one thing; but a mark like the present, which contains as its dominant feature words aptly descriptive of the character or quality of the goods to which it is applied, is quite another thing. In such cases, whore the descriptive words are the dominant feature of the mark, registration should be denied. Johnson v. Brandau, 32 App. D. C. 348; Re Schweinfurter, [113]*113Pracisions-Kugel-Lager-Werke Fichtel & Sachs, 38 App. D. C. 279; Re Excelsior Shoe Co. 40 App. D. C. 480; Re Motz Tire & Rubber Co. 40 App. D. C. 487.
The statute not only prohibits the registration of marks which are descriptive, but of marks which would be likely to cause confusion in trade. “Moistair Heating System” is the tradename of a large class of merchandise. There are numerous styles of “hot air and combined hot air and hot water heaters and furnaces” manufactured and on the market, on which the owners are entitled to use the common designation here sought to be monopolized. The statute does not contemplate that the Commissioner shall register a mark with descriptive words in it, and wait until another applies for registration of the same or a similar mark before he can apply the restriction as to confusion. It is sufficient if the mark is known to be in use, or its equivalent, a tradename common to a large class of merchandise, upon one branch of which it is sought by the applicant, through the agency of registration, to monopolize the use of the mark. In the matter of the registration of trademarks, the Commissioner represents the public. The section of the statute here in question relates primarily to the protection of the public, and the controlling provision is that which forbids the registration of any mark which may lead to confusion in trade. That being true, the uniform holding of this court that registration of marks will be refused in which descriptive words constitute the dominating feature will be adhered to.
The attempt to register a tradename which would damage others engaged in handling the same class of merchandise to which the mark is applied, and for which registration is sought, has generally been held to constitute a ground for opposition proceedings. In Johnson v. Brandau, supra, sustaining the opposition on the ground that the opposer had used the mark merely as a tradename, the court said: “If registration be allowed, it becomes prima facie evidence of the applicant’s ownership of it as a valid trademark * * * in any action which he may institute against the opposer or others who may use the word as a general tradename for similar articles of [114]*114goods. Having used the word as such a tradename, although not entitled to ownership of it as a trademark, we think it is permissible for the opposer to make opposition to the registration by the applicant.” In Natural Food Co. v. Williams, 30 App. D. C. 348, involving the right to register the mark “Shredded Whole Wheat,” when it appeared that the opposer had never used the words as a trademark, the court said: “That he [the opposer] did not use the words as a trademark, but merely in a descriptive sense, is of no moment. He, in common with all other manufacturers of shredded whole wheat, had the same right to properly designate their product as did the Natural Food Company.”
The term or tradename, “Moistair Heating System,” is generic, and is descriptive of specific articles of manufacture belonging to one general class of merchandise. The name is common to all, and may be aptly used as descriptive of each. Such a name may not be monopolized as a trademark. In Standard Paint Co. v. Trinidad Asphalt Mfg. Co. 220 U. S. 446, 452, 55 L. ed. 536, 540, 31 Sup. Ct. Rep. 456, the court, considering the validity of the word “Rubberoid” as a trademark for paint, said: “The asphalt company also makes a roofing, not, however, of the same material as that of the paint company, but of the same thickness as the latter, and cut in the similar widths and lengths, and sells it under the name of ‘Rubbero’ roofing. Two contentions' are añade by the paint coanpany: (1) That its trademark is a valid one and has been infringed by the asphalt company. (2) That the latter has been guilty of unfair competition. The cour-t of appeals decided adversely to both contentions. 90 C. C. A. 195, 163 Fed. 977. Of the first contention the court said it was clear that the paint company ‘sought to appropriate the exclusive use of the term rubberoid,’ and that its rights were to be adjudged accordingly; and that as the latter, being a coanmon descriptive word, coiald not be appropriated as a trademark, the one selected by the paint company could not be appropriated. The court said: ‘A public right in rubberoid and a private monopoly of rubberoid carrnot coexist.’ The court expressed the determined and settled rule to be ‘that no one can appropriate as a trademark a generic [115]*115name or one descriptive of an article of trade, its qualities, ingredients, or characteristics, or any sign, word, or symbol which from the nature of the fact it is used to signify others may employ with equal truth.’ ”
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Mr. Justice Van Oksdel
delivered the opinion of the Court:
This appeal is from the decision of the Commissioner of Patents denying the application of appellant for the registration of the following trademark for “hot air and combined hot air and hot water heaters and furnaces:”
[112]*112The Commissioner tendered registration of the figure with the words, “Moistair Heating System,” eliminated, which appellant refused, — hence this appeal. The reason assigned by the Commissioner is that “applicant has an exclusive right to all these features except the phrase, ‘Moistair Heating System/ and it has in common with the public generally also the right to use, but not to register, these descriptive words.”
The Trademark Act of February 20, 1905 (33 Stat. at L. 724, chap. 592, Comp. Stat. 1916, sec. 9490) in sec. 5 among other things, provides: “That trademarks which are identical with a registered or known trademark owned and in use by another, and appropriated to merchandise of the same descriptive properties, or which so nearly resemble a registered or known trademark owned and in use by another, and appropriated to merchandise1 of the same descriptive properties, as to be likely to cause confusion or mistake in the mind of the public, or to deceive purchasers, shall not be registered: Provided, That no mark which consists merely in the name of an individual, firm, corporation, or association, not written, printed, impressed, or woven in some particular or distinctive manner or in association with a portrait of the individual, or merely in words or devices which are descriptive of the goods with which they are used, or of the character or quality of such goods, or merely a geographical name or term, shall be registered under the terms of this act.”
It must be conceded that the words, “Moistair Heating System,” are descriptive of the merchandise on which the mark is used and for which registration is sought. These words, standing alone, are clearly unregisterable, and are oj)en to public use, limited only by the principles involved in unfaih eompetition. If these words constitute an essential feature of the trademark, it is sufficient to defeat registration. A mark certain features of which are merely suggestive of character or quality is one thing; but a mark like the present, which contains as its dominant feature words aptly descriptive of the character or quality of the goods to which it is applied, is quite another thing. In such cases, whore the descriptive words are the dominant feature of the mark, registration should be denied. Johnson v. Brandau, 32 App. D. C. 348; Re Schweinfurter, [113]*113Pracisions-Kugel-Lager-Werke Fichtel & Sachs, 38 App. D. C. 279; Re Excelsior Shoe Co. 40 App. D. C. 480; Re Motz Tire & Rubber Co. 40 App. D. C. 487.
The statute not only prohibits the registration of marks which are descriptive, but of marks which would be likely to cause confusion in trade. “Moistair Heating System” is the tradename of a large class of merchandise. There are numerous styles of “hot air and combined hot air and hot water heaters and furnaces” manufactured and on the market, on which the owners are entitled to use the common designation here sought to be monopolized. The statute does not contemplate that the Commissioner shall register a mark with descriptive words in it, and wait until another applies for registration of the same or a similar mark before he can apply the restriction as to confusion. It is sufficient if the mark is known to be in use, or its equivalent, a tradename common to a large class of merchandise, upon one branch of which it is sought by the applicant, through the agency of registration, to monopolize the use of the mark. In the matter of the registration of trademarks, the Commissioner represents the public. The section of the statute here in question relates primarily to the protection of the public, and the controlling provision is that which forbids the registration of any mark which may lead to confusion in trade. That being true, the uniform holding of this court that registration of marks will be refused in which descriptive words constitute the dominating feature will be adhered to.
The attempt to register a tradename which would damage others engaged in handling the same class of merchandise to which the mark is applied, and for which registration is sought, has generally been held to constitute a ground for opposition proceedings. In Johnson v. Brandau, supra, sustaining the opposition on the ground that the opposer had used the mark merely as a tradename, the court said: “If registration be allowed, it becomes prima facie evidence of the applicant’s ownership of it as a valid trademark * * * in any action which he may institute against the opposer or others who may use the word as a general tradename for similar articles of [114]*114goods. Having used the word as such a tradename, although not entitled to ownership of it as a trademark, we think it is permissible for the opposer to make opposition to the registration by the applicant.” In Natural Food Co. v. Williams, 30 App. D. C. 348, involving the right to register the mark “Shredded Whole Wheat,” when it appeared that the opposer had never used the words as a trademark, the court said: “That he [the opposer] did not use the words as a trademark, but merely in a descriptive sense, is of no moment. He, in common with all other manufacturers of shredded whole wheat, had the same right to properly designate their product as did the Natural Food Company.”
The term or tradename, “Moistair Heating System,” is generic, and is descriptive of specific articles of manufacture belonging to one general class of merchandise. The name is common to all, and may be aptly used as descriptive of each. Such a name may not be monopolized as a trademark. In Standard Paint Co. v. Trinidad Asphalt Mfg. Co. 220 U. S. 446, 452, 55 L. ed. 536, 540, 31 Sup. Ct. Rep. 456, the court, considering the validity of the word “Rubberoid” as a trademark for paint, said: “The asphalt company also makes a roofing, not, however, of the same material as that of the paint company, but of the same thickness as the latter, and cut in the similar widths and lengths, and sells it under the name of ‘Rubbero’ roofing. Two contentions' are añade by the paint coanpany: (1) That its trademark is a valid one and has been infringed by the asphalt company. (2) That the latter has been guilty of unfair competition. The cour-t of appeals decided adversely to both contentions. 90 C. C. A. 195, 163 Fed. 977. Of the first contention the court said it was clear that the paint company ‘sought to appropriate the exclusive use of the term rubberoid,’ and that its rights were to be adjudged accordingly; and that as the latter, being a coanmon descriptive word, coiald not be appropriated as a trademark, the one selected by the paint company could not be appropriated. The court said: ‘A public right in rubberoid and a private monopoly of rubberoid carrnot coexist.’ The court expressed the determined and settled rule to be ‘that no one can appropriate as a trademark a generic [115]*115name or one descriptive of an article of trade, its qualities, ingredients, or characteristics, or any sign, word, or symbol which from the nature of the fact it is used to signify others may employ with equal truth.’ ”
By indisputable analogy, it follows that to give the statute the force intended by Congress, primarily to protect the public against confusion in trade, the Commissioner may anticipate inevitable confusion, and refuse to grant a monopoly in a mark which is not only descriptive in its dominant features, but contains the common tradename of similar commodities in a general class of merchandise. If an applicant can register descriptive words or tradenames camouflaged in immaterial and deceptive trimmings, the whole purpose of the statute would be nullified. To uphold such procedure amounts to countenancing the perpetration of a fraud in the face of the clear intent of Congress. The conclusion, when measured in the light of the evident purpose of the statute, seems to be irresistible. It is so just and so manifestly in accord with the spirit of the law that a different interpretation should not be indulged through any technical, fine-spun, literal construction of the statute.
Opportunity was given appellant in the Patent Office to eliminate from his mark the words, “Moistair Heating System,” and accept registration of the fanciful portions of the design. Clearly this is all to which he is entitled. It, however, can be accomplished only by elimination from the registered mark, and not merely by filing a disclaimer in the Patent Office. Johnson v. Brandau, 32 App. D. C. 348; Electro Steel Co. v. Lindenberg Steel Co. 43 App. D. C. 270; Fishbeck Soap Co. v. Kleeno Mfg. Co. 44 App. D. C. 6.
The decision of the Commissioner of Patents is affirmed, and the clerk is directed to certify these proceedings as by law required. Affirmed.