Opinion
No. 1990.
Submitted November 21, 1927.
Decided December 5, 1927. Petition for Modification Denied January 21, 1928.
Appeal from the Commissioner of Patents.
Petition by the Edgar-Morgan Company for the cancellation of a trade-mark of Embry E. Anderson. The decision of the Examiner of Interferences ordering cancellation was reversed by the Commissioner, and petitioner appeals. Reversed.
A.E. Wallace, of Chicago, Ill., for appellant.
L.B. Kemon, of Washington, D.C., for appellee.
Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.
Appellant, Edgar-Morgan Company, filed a petition for the cancellation of the trade-mark "Creamo" placed above a circle in which appears the head of a mule. The mark is used on oats for use as stock feed. The petitioner claims damage through prior use upon stock feed of a mark which consists of the words "Old Beck" and a red disk underneath, upon which appears the head of a mule.
No testimony was taken by the appellee; hence the earliest date to which he is entitled is his filing date, February 10, 1923. The testimony of petitioner shows that his mark has been employed by stamping it upon burlap bags in which the feed is packed, and on which appears the large red disk with a mule's head prominently displayed, and above the disk the words "Old Beck." While the position of the mule's head is slightly different in each case, it is set forth as a silhouette, and the difference is so slight that it would not be observed by the ordinary person. The only difference, therefore, between the marks, are the words "Creamo" in the one instance, and "Old Beck" in the other.
Cancellation was ordered by the Examiner of Interferences, and his decision was reversed by the Commissioner. We think the decision of the Examiner was right. While it is true that pictures of stock used in connection with stock feed are descriptive, the registrant in this case, as pointed out by the Examiner, "has not distinguished its mark from that used by the petitioner, as is required of traders using descriptive elements of another's mark."
The decision of the Commissioner of Patents is reversed.