Tupelo Cotton Mills v. American Bleached Goods Co.

D.C. Circuit

Tupelo Cotton Mills v. American Bleached Goods Co.

4 F.2d 953, 55 App. D.C. 286, 1925 U.S. App. LEXIS 3136

CourtCourt of Appeals for the D.C. Circuit

DecidedApril 6, 1925

DocketNo. 1719

StatusPublished

This text of 4 F.2d 953 (Tupelo Cotton Mills v. American Bleached Goods Co.) 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.

Bluebook

Tupelo Cotton Mills v. American Bleached Goods Co., 4 F.2d 953, 55 App. D.C. 286, 1925 U.S. App. LEXIS 3136 (D.C. Cir. 1925).

Pincite

Opinion

ROBB, Associate Justice.

This is an appeal from a decision of the Patent Office in a trade-mark cancellation proceeding.

The marks of the parties are applied to goods of the same descriptive properties. Appellee’s mark, adopted and used extensively since 1907, consists of a bird, wings outstretched, just leaving a twig; the-body of the bird being red, and its wings and tail black. In a circle surrounding this bird, which is said to be a representation of a scarlet tanager, are the words “Pride of the West — India Linón.” Appellant’s mark, adopted in 1917, consists of a bird perched on a twig, with wings ontstretched and carrying in its mouth a string, from which is suspended a disk bearing the word “Tupelo.” In the drawing the breast of this bird, said to be a representation of a bluebird, is lined for red, while the head, back, tail, and wings are lined for blue.

The Assistant Commissioner ruled that tlio concurrent use of these two marks was “likely to cause confusion or mistake in the mind of the public or to deceive purchasers,” within the meaning of the Trade-Mark Act, and hence that appellant’s mark should be canceled. In this ruling we concur. Coca-Cola Co. v. Chero-Cola Co., 51 App. D. C. 27, 273 P. 755; Canterbury Candy Makers v. Brecht Candy Co., 54 App. D. C. 82, 294 F. 1013. Appellant suggests that these two birds are easily distinguishable. They might be by ornithologists, but the purchasing public includes comparatively few persons who "have particular knowledge of birds. To the average person these goods would be bird goods, and would not be known as bluebird or tanager goods.

The decision is affirmed.

Affirmed.

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ROBB, Associate Justice.

This is an appeal from a decision of the Patent Office in a trade-mark cancellation proceeding.

The marks of the parties are applied to goods of the same descriptive properties. Appellee’s mark, adopted and used extensively since 1907, consists of a bird, wings outstretched, just leaving a twig; the-body of the bird being red, and its wings and tail black. In a circle surrounding this bird, which is said to be a representation of a scarlet tanager, are the words “Pride of the West — India Linón.” Appellant’s mark, adopted in 1917, consists of a bird perched on a twig, with wings ontstretched and carrying in its mouth a string, from which is suspended a disk bearing the word “Tupelo.” In the drawing the breast of this bird, said to be a representation of a bluebird, is lined for red, while the head, back, tail, and wings are lined for blue.

The Assistant Commissioner ruled that tlio concurrent use of these two marks was “likely to cause confusion or mistake in the mind of the public or to deceive purchasers,” within the meaning of the Trade-Mark Act, and hence that appellant’s mark should be canceled. In this ruling we concur. Coca-Cola Co. v. Chero-Cola Co., 51 App. D. C. 27, 273 P. 755; Canterbury Candy Makers v. Brecht Candy Co., 54 App. D. C. 82, 294 F. 1013. Appellant suggests that these two birds are easily distinguishable. They might be by ornithologists, but the purchasing public includes comparatively few persons who "have particular knowledge of birds. To the average person these goods would be bird goods, and would not be known as bluebird or tanager goods.

The decision is affirmed.

Affirmed.

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Bluebook (online)

4 F.2d 953, 55 App. D.C. 286, 1925 U.S. App. LEXIS 3136, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tupelo-cotton-mills-v-american-bleached-goods-co-cadc-1925.

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