Annie M. MALONE, Doing Business under the Style and Name of Poro College, Appellant, v. Clarence C. HAY, Appellee

Annie M. MALONE, Doing Business under the Style and Name of Poro College, Appellant, v. Clarence C. HAY, Appellee. (Court of Appeals of District of Columbia. Submitted November 16, 1925. Decided January 4, 1926.) No. 1779. Appeal from the Commissioner of Patents. See, also, --- App. D. C. ---, 10 F.(2d) 905. J. D, Rippey and L. C. Kingsland, both of St. Louis, Mo., for appellant. J. E. Byrne, L. F. Randolph, and J. W. Milburn, all of Washington, D. C., and C. M. Bryan, of Memphis, Tenn., for appellee. Before MARTIN, Chief Justice, ROBB, Associate Justice, and SMITH, Judge of the United States Court of Customs Appeals. [MAJORITY — MARTIN, Chief Justice.] MARTIN, Chief Justice. This is an appeal from a decision of the Commissioner of Patents, overruling an opposition filed by the appellant in a trade-mark registration proceeding. The appellee, Clarence Hay, applied for the registration of a trade-mark consisting of the word “Hay-Po” for use on shampoo soap. The appellant, Annie M. Malone, doing business under the name of Poro College, filed an opposition to the application because of the alleged similarity of “Hay-Po” "with her registered trade-mark “Poro,” used upon preparations for the treatment of the hair and hair dressings. The opposer claimed that the issue thus raised by the opposition had been passed upon in similar proceedings between the same parties, and that both the Patent Office and this court had entered decisions against the applicant upon said issues, which decisions were still in full force and effect. The opposer accordingly contended that the applicant was barred by the rule of res judicata from again contesting said opposition. We sustain this claim of the appellant, and refer to our opinion in Malone v. Hay No. 1778, 10 F.(2d) 905, handed down concurrently herewith, for the grounds of this decision. The decision of the Commissioner of Patents is accordingly reversed.