Opinion
William G. MacKay and Charles R. Allen, both of Washington, D.C., for plaintiff.
W. W. Cochran, Sol., U.S. Patent Office, of Washington, D.C., for Defendant Conway P. Coe, Commissioner of Patents.
Royal R. Rommel (of Lancaster, Allwine & Rommel), of Washington, D.C., and Beekman Aitken, of New York, N.Y., for defendant Cranberry Canners, Inc.
A. W. Murray, of Chicago, Ill., for defendant Ilwaco Oyster Co., Inc.
PINE, Associate Justice.
These are actions under Sec. 4915, R.S., 35 U.S.C.A.§ 63. Plaintiff applied for registration of a trade mark consisting of the term Pacific Spray for canned crab meat. Defendants Cranberry Canners, Inc., and Ilwaco Oyster Co. filed respective notices of opposition to such registration. Prior use by opposers is not in issue. The mark registered to Cranberry Canners, Inc., is Ocean Spray and is applied to canned cranberries. The mark registered to Ilwaco Oyster Co. is Northern Spray and is applied to canned oysters. Canned crab meat and canned cranberries are goods of the same descriptive properties within the meaning of the Trade Mark Laws, 15 U.S.C.A. § 85. This is also true of canned crab meat and canned oysters. California Packing Corp. v. Halferty, 54 App.D.C. 88, 89, 295 F. 229. In my opinion the mark Pacific Spray so nearly resembles the marks Ocean Spray and Northern Spray that its use would likely deceive purchasers or cause confusion, or perhaps more accurately stated, further confusion, in the canned foods trade. In any event, the question is not free from doubt, and doubt should be resolved against the newcomer. Skelly Oil Co. v. Powerine Co., 86 F.2d 752, 24 C.C.P.A.,Patents, 790. Furthermore, the term Pacific, forming part of plaintiff's mark, is descriptive of the goods to which the mark is applied. 15 U.S.C.A. § 85.
I therefore find for the defendants in both cases. Counsel will prepare and submit, on notice, judgments and findings of fact and conclusions of law.