In re Nash Hardware Co.

33 App. D.C. 221, 1909 U.S. App. LEXIS 6054

• Court: Court of Appeals for the D.C. Circuit
• Decided: April 6, 1909
• Docket: No. 564
• Status: Published

Opinion

Mr. Justice Robb

delivered the opinion of the Court:

That the marks “Worth” and “Our Worth,” being appropriated to goods of the same descriptive qualities, would be likely to cause confusion in the mind of the public and to deceive purchasers, is too plain to admit of argument. Under sec. 1 of the trademark act it is made the duty of the Commissioner of Patents to decline to register a mark when such conditions exist. Having discovered, by a reference to the records of the Patent Office, evidence of the prior use of the mark “Worth” by another firm, the Commissioner, in the performance of his duty, brought that evidence to the attention of the applicant. The burden thereupon rested upon the applicant to convince the Commissioner, by the production of reasonable and satisfactory proof, either that the applicant was the first to adopt and use the mark, or that its use had been abandoned by B. Worth & Sons. We agree with the Commissioner that the evidence submitted is not sufficient to sustain the burden thus placed upon the applicant. The affidavit of Mr. Nash fails to state the extent of the investigation conducted by him, and the statement in the letter from the Sheffield house to the effect that the Supplees are the only handlers of B. Worth & Sons’ goods in tbe United States, taken in connection with the applicant’s failure to file the response by the Supplee Company to the letter written by Mr. Buch, indicates a present use of the mark in this country by B. Worth & Sons. We conclude, therefore, that the Commissioner was right in declining to register the mark to applicant. This conclusion renders it unnecessary to determine whether the mark “Our Worth” is descriptive of quality within the meaning of the trademark act.

The decision of the Commissioner of Patents is affirmed, and the clerk of this court will certify this opinion and the proceedings in this court to the Commissioner of Patents, as required by law. Affirmed.