Sears & Nichols Co. v. Brakeley

D.C. Circuit

Sears & Nichols Co. v. Brakeley

38 App. D.C. 530, 1912 U.S. App. LEXIS 2163

CourtCourt of Appeals for the D.C. Circuit

DecidedApril 1, 1912

DocketNo. 759

StatusPublished

This text of 38 App. D.C. 530 (Sears & Nichols Co. v. Brakeley) 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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Sears & Nichols Co. v. Brakeley, 38 App. D.C. 530, 1912 U.S. App. LEXIS 2163 (D.C. Cir. 1912).

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Opinion

Mr. Chief Justice Shepard

delivered the opinion of the Court:

The Sears & Nichols Company applied for the registration [531]*531of a trademark for canned fruits and vegetables, consisting of tbe word “Evergreen.” The sample label filed shows the word “Evergreen” over a representation of green string beans and accompanied by another representation of a field of green growing vegetables.

Opposition was filed by Asher Brakeley, representing that he was engaged in packing and selling canned vegetables grown by himself, and that in July, 1897, he used the word “Evergreen” affixed as a mark to cans and packages of green peas. That the same mark has been continuously used since, and it is not- true that applicant has had exclusive use of said mark upon canned vegetables. That as he has established a valuable good will in the business of packing and selling peas under said mark and brand, he will be seriously damaged by the registration of said trademark by the applicant.

The testimony shows that Brakeley had commenced the packing and sale of canned peas, with said brand affixed, in July, 1897; that he had sold his goods with that brand in New Jersey and Pennsylvania; and that he had continued to use the same mark. Applicant’s testimony showed that it, and its predecessors from whom the mark had been acquired, had used the vrord on its canned goods since some time prior to the year 1888.

Registration was rightly denied as a technical trademark, because the word “Evergreen,” as used, is clearly descriptive. See Re Meyer Bors. Coffe & Spice Co. ante, 520; and the cases therein cited.

Nor is the mark entitled to registration under section 5 of the trademark act by virtue of actual and exclusive use of the mark for ten years prior to the adoption of the act, for the testimony shows that such use was not exclusive. Worster Brewing Corp. v. Rueter & Co. 30 App. D. C. 428-431.

The decision is right, and will be affirmed. The clerk will certify this decision to the Commissioner of Patents.

Affirmed.

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Mr. Chief Justice Shepard

delivered the opinion of the Court:

The Sears & Nichols Company applied for the registration [531]*531of a trademark for canned fruits and vegetables, consisting of tbe word “Evergreen.” The sample label filed shows the word “Evergreen” over a representation of green string beans and accompanied by another representation of a field of green growing vegetables.

Opposition was filed by Asher Brakeley, representing that he was engaged in packing and selling canned vegetables grown by himself, and that in July, 1897, he used the word “Evergreen” affixed as a mark to cans and packages of green peas. That the same mark has been continuously used since, and it is not- true that applicant has had exclusive use of said mark upon canned vegetables. That as he has established a valuable good will in the business of packing and selling peas under said mark and brand, he will be seriously damaged by the registration of said trademark by the applicant.

The testimony shows that Brakeley had commenced the packing and sale of canned peas, with said brand affixed, in July, 1897; that he had sold his goods with that brand in New Jersey and Pennsylvania; and that he had continued to use the same mark. Applicant’s testimony showed that it, and its predecessors from whom the mark had been acquired, had used the vrord on its canned goods since some time prior to the year 1888.

Registration was rightly denied as a technical trademark, because the word “Evergreen,” as used, is clearly descriptive. See Re Meyer Bors. Coffe & Spice Co. ante, 520; and the cases therein cited.

Nor is the mark entitled to registration under section 5 of the trademark act by virtue of actual and exclusive use of the mark for ten years prior to the adoption of the act, for the testimony shows that such use was not exclusive. Worster Brewing Corp. v. Rueter & Co. 30 App. D. C. 428-431.

The decision is right, and will be affirmed. The clerk will certify this decision to the Commissioner of Patents.

Affirmed.

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38 App. D.C. 530, 1912 U.S. App. LEXIS 2163, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sears-nichols-co-v-brakeley-cadc-1912.