HUNTER v. F. HOFFMAN & SONS, Inc.

HUNTER v. F. HOFFMAN & SONS, Inc. Court of Appeals of District of Columbia. Submitted Nov. 12, 1928. Decided Dec. 3, 1928. Petition for Rehearing Denied Dec. 8, 1928. No. 2077. 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. [MAJORITY — VAN ORSDEL, Associate Justice.] VAN ORSDEL, Associate Justice. This appeal is from the decision of the Commissioner of Patents in a trademark cancellation proceeding, wherein the Commissioner refused to sustain the petition of appellant, Hunter, seeking the cancellation of appel-lee’s registered trade-mark “CHOCO-SIP” for use on “non-alcoholic, non-cereal, malt-less 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.