Opinion
No. 2077.
Submitted November 12, 1928.
Decided December 3, 1928. Petition for Rehearing Denied December 8, 1928.
Appeal from the Commissioner of Patents.
Petition by H. Blount Hunter, doing business as the Chocolishus Company, for cancellation of a registered trade-mark of F. Hoffman Sons, Incorporated. From a decision refusing to sustain the application, petitioner appeals. Affirmed.
See, also, 58 App. D.C. 71, 24 F.2d 899.
William L. Symons, of Washington, D.C., for appellant.
Donald U. Rich and Chas. R. Allen, both of Washington, D.C., for appellee.
Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.
This appeal is from the decision of the Commissioner of Patents in a trade-mark cancellation proceeding, wherein the Commissioner refused to sustain the petition of appellant, Hunter, seeking the cancellation of appellee's registered trade-mark "CHOCO-SIP" for use on "non-alcoholic, non-cereal, maltless beverages sold as soft drinks, and syrups for making the same."
Petitioner's mark on which he relies for cancellation is "CHOC-O-LISHUS" used as a trade-mark for chocolate syrup made from cocoa and cane sugar for flavoring soft drinks.
We agree with the Commissioner of Patents that the determination of the question of whether or not the goods of the parties are of the same descriptive properties is unnecessary; since the marks, in our judgment, are not so similar as to tend to create confusion in trade. The term "choco" is suggestive of a preparation which contains chocolate, and to that extent is descriptive. Appellant, therefore, having adopted a descriptive word, cannot be accorded that broad protection which would prevent others from using in other relations the same descriptive term. Before appellant is entitled to cancellation of other marks containing the descriptive term "choco," it must clearly appear that such marks as a whole are deceptively similar to the mark of appellant. We think the difference between the marks here involved is clearly such as to avoid likelihood of confusion. Hunter v. Russell, 57 App. D.C. 353, 23 F.2d 774.
The decision of the Commissioner of Patents is affirmed.