Rice-Stix Dry Goods Co. v. Joseph Horowitz & Sons, Inc.

D.C. Circuit

Rice-Stix Dry Goods Co. v. Joseph Horowitz & Sons, Inc.

17 F.2d 686, 57 App. D.C. 98, 1927 U.S. App. LEXIS 3006

CourtCourt of Appeals for the D.C. Circuit

DecidedFebruary 7, 1927

DocketNo. 1923

StatusPublished

This text of 17 F.2d 686 (Rice-Stix Dry Goods Co. v. Joseph Horowitz & Sons, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Rice-Stix Dry Goods Co. v. Joseph Horowitz & Sons, Inc., 17 F.2d 686, 57 App. D.C. 98, 1927 U.S. App. LEXIS 3006 (D.C. Cir. 1927).

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Opinion

MARTIN, Chief Justice.

This is an appeal from concurring decisions of the Patent Office, denying appellant’s application for the registration of a trade-mark, because of the prior use of a similar mark by appellee upon goods of the same descriptive properties. Appellant’s application was filed on October 15,1923. The mark consists of the words “Big Chief,” associated with the side view figure of an Indian head, dressed after the fashion of an Indian chief. The mark was claimed for men’s and boy’s outer shirts, and use was asserted by appellant since January 11,1915.

It appears that the appellee, on June 23, 1919, had obtained registration of a mark, also consisting of the words “Big Chief” accompanied by the representation of an Indian head, side view, with the headdress of an Indian chief, for use upon work shirts. The record of this registration disclosed no earlier use of the mark by the registrant, now the appellee, than the year 1919. In the present ease, however, the appellee has introduced evidence tending to prove that as early as the year 1906 it adopted a mark consisting of the name “Chief,” associated with a full face view of an Indian chief, for use upon similar goods, and had used the same continuously from that dáte until the time of its registration. Appellee claimed that this fact served to preclude the registration now applied for by appellant.

Passing upon the testimony relating to this issue, the Examiner of Interferences and the Commissioner alike sustained appellee’s claim to the use of such a mark prior to the adoption of the present mark by appellant, and held that this use was a bar to the registration applied for by appellant.

We have examined the testimony, and find it sufficient to sustain the conclusion reached by the Examiner and Commissioner. The decision is therefore affirmed.

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MARTIN, Chief Justice.

This is an appeal from concurring decisions of the Patent Office, denying appellant’s application for the registration of a trade-mark, because of the prior use of a similar mark by appellee upon goods of the same descriptive properties. Appellant’s application was filed on October 15,1923. The mark consists of the words “Big Chief,” associated with the side view figure of an Indian head, dressed after the fashion of an Indian chief. The mark was claimed for men’s and boy’s outer shirts, and use was asserted by appellant since January 11,1915.

It appears that the appellee, on June 23, 1919, had obtained registration of a mark, also consisting of the words “Big Chief” accompanied by the representation of an Indian head, side view, with the headdress of an Indian chief, for use upon work shirts. The record of this registration disclosed no earlier use of the mark by the registrant, now the appellee, than the year 1919. In the present ease, however, the appellee has introduced evidence tending to prove that as early as the year 1906 it adopted a mark consisting of the name “Chief,” associated with a full face view of an Indian chief, for use upon similar goods, and had used the same continuously from that dáte until the time of its registration. Appellee claimed that this fact served to preclude the registration now applied for by appellant.

Passing upon the testimony relating to this issue, the Examiner of Interferences and the Commissioner alike sustained appellee’s claim to the use of such a mark prior to the adoption of the present mark by appellant, and held that this use was a bar to the registration applied for by appellant.

We have examined the testimony, and find it sufficient to sustain the conclusion reached by the Examiner and Commissioner. The decision is therefore affirmed.

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17 F.2d 686, 57 App. D.C. 98, 1927 U.S. App. LEXIS 3006, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rice-stix-dry-goods-co-v-joseph-horowitz-sons-inc-cadc-1927.