IN RE INDIAN PORTLAND CEMENT COMPANY

IN RE INDIAN PORTLAND CEMENT COMPANY. Trademarks; Resemblance; Confusion in Trade. A trademark sought to be registered, consisting of an Indian’s head shown in profile, with the conventional feather head-dress within a. circle, and applied to Portland cement, held to so resemble another trademark showing the front view of an Indian’s head with a similar-head-dress, and applied to the same product, as to be calculated to-produce eonfusion in trade, and therefore not to be registerable (Citing Re Herbst Importing Co. ante, p. 297.) No. 438 Patent Appeals. Submitted January 20, 1908. Decided February 18, 1908. Hearing on an appeal from a decision of the Commissioner of Patents denying an application for registration of a trademark. Affirmed. The facts are stated in the opinion. Mr. Edward S. McCalmont and Mr. Joseph D. Sullivan for the appellant. Mr. Frederick A. Tennant for the Commissioners of Patents. [MAJORITY — Mr. Chief Justice Shepard] Mr. Chief Justice Shepard delivered the opinion of the Court: The Indian Portland Cement Company, a corporation of New Jersey engaged in manufacturing Portland cement in Neodesha, Kansas, appeals from a decision of the Commissioner of Patents denying its application for the registration of a trademark. The distinguishing feature of the trademark, alleged to have been used since July 1, 1906, consists of an Indian’s head shown in profile, with the conventional feather head-dress, within a circle. Between this and an outer circle appear the words, “Indian Portland Cement Co., Neodesha, Kansas.” The ground of refusal to register was that the trademark so closely resembles another as to be apt to deceive purchasers. The reference is to a trademark registered by Miller, Mason & Company, on August 2, 1904. That mark is described as “the representation of an Indian’s head with a feather head-dress.” The drawing and labels used by them on barrels and bags of Portland cement shows a front view of the Indian’s head with the feather head-dress. While a comparison of the two marks as represented shows difference in details, the feature of each is a conventional Indian head, calculated to make the manufactures on which they are used known to the public as Indian head cement. We agree with the Commissioner that the resemblance is such as to produce the confusion in trade which it is the object of the trademark act to prevent. See Re Herbst Importing Co. Present Term [ante, p. 291.] The decision will be affirmed, and the clerk will certify this decision to' the Commissioner of Patents as required by law. Affirmed,.