Opinion
Patent Appeals No. 5092.
March 4, 1946. Rehearing Denied May 3, 1946.
Appeal from Commissioner of Patents of United States Patent Office, Cancellation No. 4,098.
Proceeding by National NuGrape Company against Judge Dolph, Limited, for cancellation of the registration of defendant's trade-mark for the mark So-Grape applied to nonalcoholic maltless beverages and concentrates. From a decision of the Commissioner of Patents affirming the decision of Examiner of Interferences dismissing the petition, the petitioner appeals.
Reversed.
Hirsch, Smith, Kilpatrick, Clay Cody and Ernest P. Rogers, all of Atlanta, Ga., and Thomas L. Mead, Jr., of Washington, D.C., for appellant.
Harry C. Alberts, of Chicago, Ill., for appellee.
Before GARRETT, Presiding Judge, and BLAND, HATFIELD, JACKSON, and O'CONNELL, Associate Judges.
Appellant sought cancellation of the registration of appellee's trade-mark No. 395,289, dated May 19, 1942, for the mark "So-Grape" applied to nonalcoholic maltless beverages and concentrates, relying on its registered trade-mark "NuGrape," No. 164,168, dated February 13, 1923, used on nonalcoholic maltless beverages and sirups and extracts therefor.
The case was submitted on stipulation of the parties.
The Examiner of Interferences dismissed the petition, on the ground that he had not been persuaded that injury within the meaning of section 13 of the Trade-Mark Act of 1905, 15 U.S.C.A. § 93, had been established.
Upon appeal, the Commissioner of Patents affirmed the decision of the examiner, 62 U.S.P.Q. 189, on the ground that the word "Grape" is descriptive of the goods of both parties and aside from that word no similarity existed between the marks as a whole sound, appearance or meaning. The commissioner pointed out that the dominating feature of the trade-mark cannot be a descriptive word, so that purchasers would look to the prefixes "So-" and "Nu" as indicating origin of the respective goods. From that decision, this appeal was taken.
Appellee's mark appears in two lines, the first syllable and the hyphen appearing above the word "Grape," which is disclaimed. The mark of appellant is a compound word "NuGrape" in a kind of heavy script, underscored with a line which bears the legend "A Flavor You Can't Forget". The legend was disclaimed.
There is no question that the goods possess the same descriptive properties and that the word "Grape" as applied to the goods is descriptive. It is established law that a descriptive word cannot constitute the dominant part of a mark. American Brewing Company, Inc., v. Delatour Beverage Corporation, etc., 100 F.2d 253, 26 C.C.P.A., Patents, 778. Clearly the word "Grape" by itself cannot indicate origin in any particular source. The prefixes "So-" and "Nu", while unlike in sound, meaning, if any, and appearance, as was held by the commissioner, we think, considering both marks as a whole, are confusingly similar and therefore their concurrent use is likely to deceive purchasers.
The decision of the Commissioner of Patents is reversed.
Reversed.