In re INTERNATIONAL RESISTANCE CO.

In re INTERNATIONAL RESISTANCE CO. Patent Appeal No. 3215. Court of Customs and Patent Appeals. April 2, 1934. Janney, Blair & Curtis, of Hew York City (Paul A. Blair and J. Harold Kileoyne, both of Washington, D. C., and George Crompton, Jr., of Hew York City, of counsel), for appellant. T. A. Hostetler, of Washington, D. C. (Howard S. Miller, of Washington, D. C., of counsel), for Commissioner of Patents. Before GRAHAM, Presiding Judge, and BLAND, GARRETT, and LEHROOT, Associate Judges. [MAJORITY — GARRETT, Associate Judge.] GARRETT, Associate Judge. This is an appeal from a decision of the Commissioner of Patents affirming the decision of the Examiner of Trade-Marks refusing registration of the word “Metallized” as a trade-mark for use on radio resistors. The primary ground upon which the decision appealed from rests is that the word is either descriptive or misdeseriptive. The following are definitions of “Metal-lized” : “a. To make metallic; to coat with metal; to impregnate with a metal or metallic compound.” Webster. “1. To turn into metal; infuse mineral or metallic particles into, as the pores of wood.” Funk & Wagnalls. For appellant it is not only conceded but contended that the word, as appellant applies it, is misdeseriptive, since tliere is no metal-fixation of any character in its resistors, but it is insisted that the statute does not pro-Mbit the registration of misdeseriptive words, Rather, it is argued that the trade-mark registration act mandatorilly requires the registration of all marks not falling within the exeeptions therein specifically named, and that misdeseriptive marks are not so named. The question of the right to register a misdeseriptive trade-mark came, for the first time, before this court in the ease of In re Bonide Chemical Co., Inc., 46 F.(2d) 705, 18 C. C. P. A. 909, decided February 3, 1931. We there pointed out that little direct au-thoritv had been found upon the “purely registration” feature of such marks, and said: “ * * * This is probably due to the fact that there have been few instances where attempts have been made to register marks upon their faee[s] descriptive, but avowed in the application not to be, for the reason that it was intended to use them upon products that would not eonf onn to the implication or meaning of the marks.” Such authorities as we found that seemed pertinent were cited: the principal one being Worden & Co. v. California Fig Syrup Co. 187 U. S. 23 S. Ct 161. 164, 47. L. Ed. 282, whorem it was said tlxat: “ * * * Where any symbol or label claimed as a trade-mark is so constructed or worded . . . , .. as to make or contain a distinct assertion which is false, no properly can be claimed on %t> or’m °ther wordfi’ th0 rlS‘M.t0 sive use of it cannot be maintained. (Italics ours). Ownership is a prerequisite of registra-ti-oxi, and it is our view, under the rule announced by the Supremo Court in California Fig Syrup Co. Case, supra, that one cannot . * , . ’ , ,, „ acquire exclusive use, ana therefore ownership, of a misdeseriptive term. Other citations bearing upon the question will he found in the opinion in the Bonide Chemical Co. Case, supra. In the case of In re Brunswick-Balke-Collender Co., 56 F.(2d) 890, C. C. P. A. 1055, we held the mark, registration ot which was there sought, to be either descriptive or misdeseriptive, and in either event nonregislerable. We find nothing in the case at bar which distinguishes it in principle from the cases cited, supra. The brief for appellant is an elaborate one, citing many authorities upon different points raised, but there are no citations and no arguments advanced which convince us that we were in error in the rule laid down relative to the registerability of misdeserip-tive marks, and we adhere thereto, The primary ground upon which the Commissioner’s decision rests is in entire aecord with that rule and, since this is decisive 0f the ease, the other grounds require no rev*ew us- The decision of the Commissioner of Paten4s that appellant is not entitled to the registration sought is affirmed. Affirmed. HAIJIELD, Associate Judge, did not participate,