W. R. Roach & Co. v. G. & J. Lo Bue Bros.

D.C. Circuit

W. R. Roach & Co. v. G. & J. Lo Bue Bros.

17 F.2d 684, 57 App. D.C. 96, 1927 U.S. App. LEXIS 3004

CourtCourt of Appeals for the D.C. Circuit

DecidedFebruary 7, 1927

DocketNo. 1895

StatusPublished

Cited by2 cases

This text of 17 F.2d 684 (W. R. Roach & Co. v. G. & J. Lo Bue Bros.) 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

W. R. Roach & Co. v. G. & J. Lo Bue Bros., 17 F.2d 684, 57 App. D.C. 96, 1927 U.S. App. LEXIS 3004 (D.C. Cir. 1927).

Pincite

Opinion

MARTIN, Chief Justice.

The appellee applied fob the registration of its trademark consisting chiefly of the representation of a heart, for use upon macaroni. The appellant opposed the application, upon the ground that it was the prior registrant of a mark similarly embellished with a heart, used upon canned fruits, canned vegetables, canned salmon, canned pork and beans, [685]*685canned evapoi ated milk, fresh fruits, fresh vegetables, eoifee, tea, and similar products. The appellant has also used its mark upon macaroni, but this use first began after the present application of appellee was filed.

The Examiner of Interferences dismissed the opposition upon motion of the applicant, upon the ground that the goods upon which appellant had used the mark prior to this-application, as above specified, were not of the same descriptive properties as macaroni.

The opposer appealed from the dismissal to the Commissioner of Patents, claiming that the goods in question were of the same descriptive properties as macaroni, and insisting that the Examiner erred in denying opposer the right to introduce testimony in order to prove the likelihood of confusing in trade and injury to opposer.

The Commissioner considered the appeal and observed that an order like this which denies opposer the opportunity to take testimony, should be granted only in a dear ease, but held, nevertheless, that the Examiner was right in his ruling that the goods of the respective parties were .not of the same descriptive properties. He therefore affirmed the decision of the Examiner. The Commissioner based his conclusion in part upon the opinions of this court in Johnson Educator Food Company v. Sylvanus Smith & Co., Inc., 37 App. D. C. 107, and Quaker Oats Co. v. Mother’s Macaroni Co., 41 App. D. C. 254.

The first of these cases held that salted, smoked, and canned fish were not of the same descriptive properties as crackers, biscuits, bread and breakfast cereals. The second ease held that the registration of the word “Mother’s,” as a trade-mark for macaroni, spaghetti, and vermicelli, will not be denied on the ground that it would be deceptive and confusing, because already used as a trademark for breakfast cereals.

We think that these authorities sustain the decision of the Commissioner, of Patents. It is accordingly affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

MARTIN, Chief Justice.

The appellee applied fob the registration of its trademark consisting chiefly of the representation of a heart, for use upon macaroni. The appellant opposed the application, upon the ground that it was the prior registrant of a mark similarly embellished with a heart, used upon canned fruits, canned vegetables, canned salmon, canned pork and beans, [685]*685canned evapoi ated milk, fresh fruits, fresh vegetables, eoifee, tea, and similar products. The appellant has also used its mark upon macaroni, but this use first began after the present application of appellee was filed.

The Examiner of Interferences dismissed the opposition upon motion of the applicant, upon the ground that the goods upon which appellant had used the mark prior to this-application, as above specified, were not of the same descriptive properties as macaroni.

The opposer appealed from the dismissal to the Commissioner of Patents, claiming that the goods in question were of the same descriptive properties as macaroni, and insisting that the Examiner erred in denying opposer the right to introduce testimony in order to prove the likelihood of confusing in trade and injury to opposer.

The Commissioner considered the appeal and observed that an order like this which denies opposer the opportunity to take testimony, should be granted only in a dear ease, but held, nevertheless, that the Examiner was right in his ruling that the goods of the respective parties were .not of the same descriptive properties. He therefore affirmed the decision of the Examiner. The Commissioner based his conclusion in part upon the opinions of this court in Johnson Educator Food Company v. Sylvanus Smith & Co., Inc., 37 App. D. C. 107, and Quaker Oats Co. v. Mother’s Macaroni Co., 41 App. D. C. 254.

The first of these cases held that salted, smoked, and canned fish were not of the same descriptive properties as crackers, biscuits, bread and breakfast cereals. The second ease held that the registration of the word “Mother’s,” as a trade-mark for macaroni, spaghetti, and vermicelli, will not be denied on the ground that it would be deceptive and confusing, because already used as a trademark for breakfast cereals.

We think that these authorities sustain the decision of the Commissioner, of Patents. It is accordingly affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

17 F.2d 684, 57 App. D.C. 96, 1927 U.S. App. LEXIS 3004, Counsel Stack Legal Research, https://law.counselstack.com/opinion/w-r-roach-co-v-g-j-lo-bue-bros-cadc-1927.

Opinion

Related

Cite This Page — Counsel Stack