MALONE v. WEYER

MALONE v. WEYER. (Court of Appeals of District of Columbia. Submitted May 11, 1926. Decided June 1, 1926.) No. 1859. Trade-marks and trade-names and unfair competition <§=43. Trade-mark “Pom-Po-Lay” held, not deceptively similar to trade-mark “Poro” for use in both instances on hair preparation. Appeal from the Commissioner of Patents. Application by George H. Weyer for registration of trade-mark, opposed by Annie M. Malone, doing business under the style and name of Poro College. From a decree dismissing the opposition, opposer appeals. Affirmed. J. D. Rippey and L. C. Kingsland, both of St. Lords, Mo., for appellant. H. S. Neiman, of New York City, and Robert Watson, of Washington, D. C., for appellee. Before MARTIN, Chief Justice, ROBB, Associate Justice, and BAILEY, Justice of the Supreme Court of the District of Columbia. [MAJORITY — ROBB, Associate Justice.] ROBB, Associate Justice. Appeal from a decision of the Patent Office dismissing appellant’s opposition to the registration by appellee of the word “Pom-Po-Lay,” together with a figure, within a border, as a trade-mark for chemical preparations for the treatment or smoothing out of hair; the ground of the opposition being a prior registration and use of the mark “Poro” on similar preparations. The Examiner of Interferences ruled that the two marks are not deceptively similar, within the meaning of the Trade-Mark Act-. The Assistant Commissioner, after finding that the two marks “are clearly distinguishable,” also ruled that appellant had failed to prove title to the mark “Poro” through an assignment from the prior owner. Since we agree with the Patent Office that the two marks are not deceptively similar, it is unnecessary to consider the other question. The decision is affirmed. Affirmed.