PREST-O-LITE CO., Inc., v. PLAY-O-LITE CO., Inc.

PREST-O-LITE CO., Inc., v. PLAY-O-LITE CO., Inc. (Court of Appeals of District of Columbia. Submitted May 10, 1920. Decided June 2, 1920.) No. 1300. Trade-marks and trade-names <&=321 — Adopted mark “Prest-O-Lite,” held not to prevent registration of mark “Play-O-Lite.” Where mark “Prest-O-Lite” was adopted in 1904 for use on gas tanks, and in 1915 applied to the manufacture of storage batteries, the user was not in a position to prevent the registration in 1917 of “Play-O-Lite” for use on electric lamps, where “Linolite,” “Tubolite,” “Portalite,” and “Pract-El-Lite” were registered by others between 1904 and 1915, and applied to electric lights. cg=^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes Appeal from a Decision of the Patent Office. Trade-mark opposition proceeding between the Prest-O-Lite Company, Incorporated, and the Play-O-Dite Company, Incorporated. From concurrent decisions, the former appeals. Affirmed. E. W. Bradford, of Washington, D. C., for appellant. Wrn. E. Hall, of Washington, D. C., for appellee. [MAJORITY — ROBB, Associate Justice.] ROBB, Associate Justice. Appeal from concurrent decisions of the Patent Office in a trade-mark opposition proceeding. In 1904 appellant adopted the mark “Prest-O-Lite” for use on gas tanks, and in 1915 it applied the same mark to the manufacture of storage batteries. In 1917 appellee adopted the mark “Play-O-Lite” for use on electric lamps for illuminating the front of pianos. The record shows that “Einolite” was registered for use on incandescent electric lamps in 1907; the application showing use of the mark since 1902. “Tubolite” was registered in 1909 for the same goods; the date of use being 1906. “Portalite” for use on electric lamps was registered in 1912, while “Pract-El-Lite” for incandescent electric lights was registered in 1915, with July of 1914 as the date of use. So far as appears, all these marks are in use, and were in use when appellant extended its business to cover or include storage batteries. We have just ruled, in French Battery & Carbon Co. v. Prest-O-Lite Co., 49 App. D. C. 373, 265 Fed. 1013, present term, where the facts were the same, that the Prest-O-Lite Company was not in a position to prevent the registration of “Ray-O-Lite” for use on electric - lamps. The same reasoning applies here. When “Linolite,” “Tubolite,” “Portalite,” and “Pract-El-Lite” were registered for use on electric lamps and lights, the field was open, for at that time appellant was using its mark on gas tanks. Appellant’s subsequent use of its mark in 1915 on storage batteries did not entitle it, of course, to strike down the prior registrations made in good faith, or destroy the business of the various firms securing those registrations. See United Drug Co. v. Rectanus, 248 U. S. 90, 101, 39 Sup. Ct. 48, 63 L. Ed. 141. As the field already was occupied, it follows that appellant is not in a position to object to the registration by appellee of its mark for use on electric lights. The decision is affirmed. Affirmed.