KUSHNER & GILLMAN, Inc., v. MAYFLOWER WORSTED CO.

KUSHNER & GILLMAN, Inc., v. MAYFLOWER WORSTED CO. (Court of Appeals of District of Columbia. Submitted January 12, 1926. Decided March 1, 1926.) No. 1799. 1. Trade-marks and. trade-names and unfair competition <§=>43 — Sailing ship and words “Mayflower Brand” held deceptively similar to familiar picture of ship Mayflower. Trade-mark, consisting of sailing ship with sails spread surmounted by words “Mayflower Brand,” held deceptively similar to mark consisting of familiar picture of historic ship “Mayflower” with sails set. 2. Trade-marks and trade-names and unfair competition <@=>61 — Men’s clothing held to possess same descriptive qualities as worsted piece goods designed for men’s clothing as affecting use of deceptively similar trademarks thereon. Worsted piecé goods designed to be used almost exclusively as material for men’s coats and suits, held possessed of same descriptive qualities as men’s coats and suits, as affecting right of clothing manufacturer to use mark deceptively similar to that used by fabric manufacturer. Appeal from Commissioner of Patents. Application by Kushner & Gillman, Inc., for registration of trade-mark, opposed by the Mayflower Worsted Company. Prom a decision of the Commissioner of Patents, denying application, applicant appeals. Affirmed. J. G. M. Browne, of Brooklyn, N. Y., for appellant. W. S. Hodges, of Washington, D. C., and Morton. Collingwood, of Boston, Mass., for appellee. Before MARTIN, Chief justice, ROBB, Associate Justice, and BLAND, Judge of the United States Court of Customs Appeals. Certiorari denied 46 S. Ct. 488, 70 L. Ed. —. [MAJORITY — MARTIN, Chief Justice.] MARTIN, Chief Justice. This is an appeal .from a decision of the Commissioner of Patents, sustaining appellee’s opposition, and rejecting appellant’s application for the registration of a trade-mark. Appellant is a manufacturer of men’s clothing, selling exclusively to the retail trade. Appellee is a manufacturer of worsted fabrics from which men’s clothing is manufactured, selling only to manufacturers and jobbers. It does not manufacture clothing. Appellant applied for registration of its trade-mark, consisting of a sailing ship, with sails spread, surmounted by the words “Mayflower Brand,” for men’s coats and suits; the word “brand” being disclaimed apart from the mark shown. Appellant claimed to have adopted and continuously used the mark in its business since July 1, 1922. Appellee opposed the application setting up its trade-mark consisting of the familiar picture of the historic ship “Mayflower,” with sails set, used upon worsted goods in the piece as material for the manufacture of men’s clothing; the mark having been registered on March 28, 1922, and also its trademark consisting of the word “Mayflower” for use upon worsted goods for men’s suiting, registered on March 28, 1922. The appellee claimed, in effect, that the mark proposed by appellant for registration was deceptively similar to appellee’s mark, that appellee’s use thereof was the prior one, that the goods for which the marks were to be used were of the same descriptive properties, that appellee had expended large sums in advertising its mark, and would suffer great damage if appellant should be granted the registration applied for. In answer to this claim the appellant denied that the marks were deceptively similar, or that the goods were.of the same descriptive properties, and pleaded laches and estoppel against appellee’s claim. A large amount of testimony was submitted by the respective parties, and upon a consideration of it the Examiner of Interferences found that appellee’s use of the mark was prior in point of time to appellant’s, and also that the competing marks were sufficiently similar to be likely to produce confusion in trade if used upon goods of the same descriptive properties. The Examiner next found that in fact the appellant’s goods, to wit, men’s coats and suits, were of the same descriptive properties as the appellee’s goods, to wit, worsted goods in the piece as material for men’s clothing, upon the ground that purchasers of clothing would be likely to be influenced by the character of the material composing it, and consequently that identical trade-marks upon men’s suits, and upon piece goods used in manufacturing such suits, would likely lead to the belief that the suits were made of the materials which bore the same mark. The Examiner did not sustain the charge of laches or estoppel, and held accordingly that the opposition should be sustained. This decision was affirmed upon appeal by the Commissioner of Patents. We agree with the decision of the lower tribunals. Where a manufacturer of worsted piece goods, which are designed to be used almost exclusively as material for men’s coats and suits, adopts a trade-mark and advertises it at great expense, it is'not permissible afterwards for a manufacturer of such coats and suits to adopt and use the same mark, since the identity of marks in such case would naturally lead the purchasing public to believe that the two classes of articles came from the same source, and that the coats and suits were manufactured from the goods bearing the same trade-mark. The likelihood of damage to the manufacturer of the worsteds in such a case is too obvious to require discussion. The decision of the Commissioner of Patents is affirmed.