BLACK BROS. FLOUR MILLS v. DENNIE

BLACK BROS. FLOUR MILLS v. DENNIE. Court of Appeals of District of Columbia. Submitted May 14, 1928. Decided June 4, 1928. No. 2000. 1. Trade-marks and trade-names and unfair competition <§=>3(41/2) — Words “just-right,” as applied to poultry food, held not susceptible of exclusive appropriation. The .words “just-right,” as trade-mark for poultry food, held descriptive, and not susceptible of exclusive appropriation. 2. Trade-marks and trade-names and unfair competition <§=>43 — Trade-mark consisting of disk, with representation of chick therein, held not descriptively similar to mark consisting of ring, with picture of girl scattering feed to chicks. Trade-mark consisting of representation of disk, with central portion of different color, with representation of chick therein, and words “egg mash” and “just-right,” held as bearing on right to registration not descriptively similar to mark consisting of ring, with picture of little girl carrying in one hand a- pan of chicken feed, while scattering feed to chicks being represented as on the ground; the words “Just Rite” appearing above the picture. Appeal from the Commissioner of Patents. Application by Black Bros. Flour Mills for cancellation of registered trade-mark of Frank B. Dennie. From a decision dismissing the petition, petitioner appeals. Affirmed. Jas. Atkins, of Washington, D. C., for appellant. Before MARTIN, Chief Justice, and ROBB, Associate Justice. [MAJORITY — ROBB, Associate Justice.] ROBB, Associate Justice. Appeal from a decision of the Patent Office dismissing appellant’s petition for the cancellation of appellee’s registered trade-mark, consisting of . the representation of a disk having the outer edge of one color, with a central portion of a different color; the representation of a chick appearing within the central portion of the disk, the words “Egg Mash” appearing in a rectangle horizontally across the center of the disk and chick, and the words “Just-Right” immediately above the disk. The words “Egg Mash” and “Just-Right” are disclaimed, apart from the mark as shown. This mark is used on egg mash in class No. 46, “Foods and Ingredients of Foods.” Appellant’s mark, which was adopted pri- or to the entry of appellee into the field, consists of a ring, incomplete at the lower portion for about one-fourth of its extent, a picture of a little girl carrying in one hand a pan of chicken feed, while scattering some of the feed with the other hand; several of the chicks being represented as upon the ground, the whole appearing in the foreground of a farmyard, with a door of a building in the background. Just above this composite picture appear the words “Just Rite.” The mark is applied to poultry food, as is the mark of appellee. The Commissioner found that the words “Just-Right," as used in these marks, are descriptive, and hence not susceptible of exclusive appropriation by either party. See Standard Paint Co. v. Trinidad Asphalt Mfg. Co., 220 U. S. 446, 31 S. Ct. 456, 55 L. Ed. 536. Appellee’s design, apart from the disclaimed words, not being “so simple as to be a mere device or contrivance to evade the law and secure the registration of nonregistrable words” (Beckwith v. Com. of Patents, 252 U. S. 538, 40 S. Ct. 414, 64 L. Ed. 705; McIlhenny’s Son v. Trappey & Sons, 51 App. B. C. 273, 278 F. 582), and the marks of the parties, apart from the descriptive words, not being descriptively similar, the decision was right, and is affirmed. Affirmed.