In re the Success Co.

34 App. D.C. 443, 1910 U.S. App. LEXIS 5830

• Court: Court of Appeals for the D.C. Circuit
• Decided: February 1, 1910
• Docket: No. 624
• Status: Published

Opinion

Mr. Justice Robb

delivered the opinion of the Court:

The appellant, the Success Company, a corporation,' seeks a reversal of the decision of the Commissioner of Patents, denying it- registration of the word “Success” as a trademark.

Sec. 5 of the trademark act (33 Stat-. at L. 724, chap. 592,. U. S. Comp. Stat. Supp. 1909, p. 1278) prohibits the registration of any “mark which consists merely in the name of an individual., -firm, corporation, or association, not written, print-ed, impressed, or woven in some particular or distinctive manner or in association with a -portrait- of the individual,” etc.

The contention put forward here is that, although the mark involved is not- applied in any particular or distinctive manner, it nevertheless is entitled to registration because it is the subject of a technical trademark, and hence is not merely the name of the corporation. The mark is the dominant feature of the corporate name, for “The” and “Company” add nothing to that name, any more than they would if they both preceded “Success.” Under such an arrangement the corporate name would read “The Company Success,” Success being the sole distinctive and identifying word.

Unless, therefore, a word which is the subject of a technical trademark, assuming “Success” as here used to be such a word, is entitled to registration notwithstanding it is a substantial reproduction of the corporate name, this case is ruled by our decision in Kentucky Distilleries & Warehouse Co. v. Old Lexington Club Distilling Co. 31 App. D. C. 223. The statute makes no such distinction as that for which appellant contends; and to read such a distinction into the statute would, we think, render abortive the intent of Congress. To entitle any mark to registration which consists, merely in the name of a corporation, it must be applied “in some particular or distinctive manner.” This mark, not being so applied, is not entitled to registration. The word “merely,” as used in the statute, was clearly intended to prevent the registration by a corporation of its own name, whether that name be the subject of a technical trademark or not. We must take the statute as we find it, and attempt to enforce its plain- provisions. The decision of the Commissioner is right, and is therefore affirmed. The clerk will certify, these proceedings as by law required.

Affirmed.