DERBY OIL CO. v. WHITE STAR REFINING CO.

DERBY OIL CO. v. WHITE STAR REFINING CO. Patent Appeal No. 3056. Court of Customs and Patent Appeals. Jan. 23, 1933. Albert J. Pihe, of Chicago, 111., for appellant. Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges. [MAJORITY — GRAHAM, Presiding Judge.] GRAHAM, Presiding Judge. This appeal is a companion case to Derby Oil Co. v. White Star Refining Co., 62. F.(2d) 984, 20 C. C. P. A. -, decided concurrently herewith. The parties are the same in both cases, and the issues substantially so, this being an opposition proceeding and the case cited being a cancellation proceeding. In this ease the appellant, Derby Oil Company, filed its application for registration on August 13, 1929, and sought to register a trade-mark used by it in connection with the sale of motor fuels, said trade-mark being the representation of a white, five-pointed star upon a circular red background, with the initials “D. 0. Co.” in a monogram inscribed thereon, and with the word “Aeroplane” arranged in the arc of a circle above and around the upper part of the background of the star. This mark, it was claimed, had been used by the applicant since January 1, 1917. The word “Aeroplane” is disclaimed, apart from the mark. The appellee, White Star Refining Company, opposed registration of said mark, claiming prior use of a white star and the words “White Star” as a trade-mark, long prior to the 1st day of January, 1917, and continuously since that time. It further alleged the registration by the Brooks Oil Company, its predecessor, of said marks, on October 18, 1927, and October 25, 192,7. The opposer claimed confusion with its corporate name, and also that the registration would result in confusion in trade and as to the origin of the goods sold thereunder, to the damage of the opposer. The appellant filed answer to said notice of opposition, denying confusion and priority of use, and pleading publici juris as to said “White Star” mark, making reference to many prior registrations of a white star by others selling petroleum products. The Examiner sustained the opposition, which decision was affirmed by the Commissioner. It will bo unnecessary to again state what we have said in Derby Oil Company v. White Star Refining Company, supra. In our opinion, there are no facts in this case which will justify any different conclusion than that arrived at in the ease cited. The mark here is somewhat different, in that it bears the word “Aeroplane.” This, however, in our opinion, is not enough to change the distinguishing characteristic of the mark which, to our mind, is the representation of a white star, or the use of the words “White Star.” Therefore, the same reasoning is held to bo applicable here as in the companion case. For this reason the decision of the Commissioner of Patents is affirmed. Affirmed.