PARFUMERIE ROGER & GALLET, SOCIÉTÉ ANONYME, v. JOHN WANAMAKER, PHILADELPHIA

PARFUMERIE ROGER & GALLET, SOCIÉTÉ ANONYME, v. JOHN WANAMAKER, PHILADELPHIA. Court of Appeals of District of Columbia. Submitted May 9, 1927. Decided May 26, 1927. No. 1947. Trade-marks and trade-names and unfair competition <S=»43 — “Charme d’Amour” held not deceptively similar to “Fleurs d’Amour” and “Boquet des Amours” as affects registration for use on toilet goods. Trade-mark “Charme d’Amour” held not •deceptively similar to “Fleurs d’Amour” and “Boquet des Amours,” so as to preclude registration as trade-mark for use on same goods; the word “Amour” having been long in use and not susceptible of exclusive appropriation. Appeal from Commissioner of Patents. Application by John Wanamaker, Phila-delphia, for registration of trade-mark, opposed by Parfumerie Roger & Gallet, Soeiété Anonyme. Prom a decision of the Commissioner of Patents, dismissing opposition and granting registration, the opposer appeals. Affirmed. Maurice Leon, of New York City, and D. U. Rich, of Washington, D. C., for appellant. K. N. Ware and C. H. Howson, both of Philadelphia, Pa., for appellee. Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices. [MAJORITY — MARTIN, Chief Justice.] MARTIN, Chief Justice. An appeal from a decision dismissing appellant’s opposition and granting registration of a trademark to appellee. In October, 1923, John Wanamaker, Philadelphia, applied for the registration of the trade-mark “Charme d’Amour” to be used particularly for perfumes, alleging use of the mark in its business since November 1, 1917. An opposition to the registration was filed by Parfumerie Roger & Gallet, a French corporation, based upon its trade-mark “Fleurs d’Amour” and “Boquet des Amours,” both registered in this country, and used by opposcr in this country for toilet articles, including perfumes. Opposer claims that applicant’s mark is confusingly similar to each of its marks. It is conceded by applicant that the goods of the parties are similar, but it is denied that the marks are confusingly similar. This defines the issue. Testimony was taken by the parties, and concurrent decisions dismissing the opposition were entered by the tribunals of the Patent Offiee. The Commissioner of Patents found upon the evidence that the opposer had made use of its trade-marks long prior to the time when use was first made by applicant of the mark in question, lie held that, since the goods of the parties were the same, the issue was restricted to the disputed similarity of the marks. Upon this issue he found that trade-marks of which the word “Amour” was a part, such as “Rose d’Amour,” “Esprit d’Amour,” “Reve d’Amour,” and “Caresse d’Amour,” had long been in public use for goods of like character with these, and while opposer’s use of its mark antedates the use of these particular names, yet nevertheless, long years prior to opposer’s adoption and use of its marks, it had been the practice and custom to associate the word “Amour” with perfumery and its manufacture; that the word had thus come into use as a descriptive term among those familiar with perfumery; and it would be improper now to grant op-poser such a broad interpretation of its trademark as would amount to an exclusive right to employ the word in connection with any other word or words whatsoever as a trademark upon perfumery, and moreover that the purchasing public has learned to distinguish ownership or origin of such goods by some other associated terms. Inasmuch, therefore, as the word “Charme,” taken alone, is wholly different from either “Fleurs” or “Boquet,” the Commissioner held that the marks as used were not deceptively similar. Upon a review of the record we are convinced that the Commissioner’s findings and conclusions are correct. We do not think it necessary to enter upon a detailed discussion of the evidence and arguments, but content ourselves with a reference to the decision entered below. The decision of the Commissioner is affirmed.