In re Indian Portland Cement Co.

30 App. D.C. 463, 1908 U.S. App. LEXIS 5554

• Court: Court of Appeals for the D.C. Circuit
• Decided: February 18, 1908
• Docket: No. 438
• Status: Published

Opinion

Mr. Chief Justice Shepard

delivered the opinion of the Court:

The Indian Portland Cement Company, a corporation of New Jersey engaged in manufacturing Portland cement in Neodesha, Kansas, appeals from a decision of the Commissioner of Patents denying its application for the registration of a trademark. The distinguishing feature of the trademark, alleged to have been used since July 1, 1906, consists of an Indian’s head shown in profile, with the conventional feather head-dress, within a circle. Between this and an outer circle appear the words, “Indian Portland Cement Co., Neodesha, Kansas.” The ground of refusal to register was that the trademark so closely resembles another as to be apt to deceive purchasers. The reference is to a trademark registered by Miller, Mason & Company, on August 2, 1904. That mark is described as “the representation of an Indian’s head with a feather head-dress.” The drawing and labels used by them on barrels and bags of Portland cement shows a front view of the Indian’s head with the feather head-dress. While a comparison of the two marks as represented shows difference in details, the feature of each is a conventional Indian head, calculated to make the manufactures on which they are used known to the public as Indian head cement. We agree with the Commissioner that the resemblance is such as to produce the confusion in trade which it is the object of the trademark act to prevent. See Re Herbst Importing Co. Present Term [ante, p. 291.]

The decision will be affirmed, and the clerk will certify this decision to' the Commissioner of Patents as required by law.

Affirmed,.