ROYAL TAILORS v. J. M. ROBINSON, NORTON & CO.

ROYAL TAILORS v. J. M. ROBINSON, NORTON & CO. Trademarks; Similarity; Confusion in Trade. Registration as a trademark for men’s coats, vests and trousers, of a mark •consisting of a full-length representation of a tiger, reclining upon a pedestal containing the words “The Royal Tailors, Chicago-New York,” is properly denied upon the opposition of a company which, before the adoption by the applicant of such mark, had adopted and continually used the words “Tiger Brand” and a mark consisting of a representation of á tiger’s head upon clothing, and particularly upon coats, overcoats, duck coats, overalls, and shirts. (Citing Re Braadland, 37 App. D. C. 602 and Carmel Wine Co. v. California Winery, 38 App. D. C. 1.) Note — On the use of another’s trademark, or insignia not technically a trademark, for advertising purposes as infringement or unfair competition, see note in L.R.A.1915B, 889. No. 1009. Patent Appeals. Submitted March 14, 1916. Decided April 3, 1916. Hearing on an appeal from a decision of the Commissioner of Patents sustaining an opposition to the registration of a trademark. Affirmed. . The facts are stated in the opinion. Messrs. Cheever & Cox, Mr. Sowell Bartle, and Mr. Dwight B. Cheever for the appellant. ' " Mr. Edward T. Fenwick for the appellee. [MAJORITY — Mr. Chief Justice Shepard] Mr. Chief Justice Shepard delivered the opinion of the Court: This is an opposition by J. M. Robinson, Norton, & Company to the registration by the Royal Tailors of a mark consisting of a full-length representation of a tiger reclining upon a pedestal, the pedestal having thereon the words “The Royal Tailors, Chicago-New York.” The application was filed December 1, 1913, and contains the following disclaimer: “No claim is made to the words ‘The,’ ‘Royal,’ ‘Tailors,’ ‘Chicago-New York,’ apart from the mark shown in the drawing.” It is alleged that the mark was used on men’s coats, vests, and trousers since November 19, 1913. The opposition alleged that the J. M. Robinson, Norton, & Company, a corporation, has been for many years, and prior to the year 1892 was, engaged in the business of selling clothing in the city of Louisville, State of Kentucky. That in its business J. M. Robinson, Norton, & Company have adopted the words “Tiger Brand” and the representation of a tiger’s head for use upon clothing, and more particularly coats, overcoats, duck coats, and overalls and shirts, and the said Tiger Brand has been used continuously since the year 1891, and has been continuously used for all of said goods since said date, in interstate commerce by opponent. It appears that the J. M. Robinson, Norton, & Company registered July 16, 1907, a trademark consisting of a circle showing a tiger’s head therein, with the words “Tiger Brand,” trademarks for coats, overcoats, duck coats, vests, trousers, and overalls. December 8, 1903, J. M. Robinson, Norton, & Company registered another trademark consisting of a tiger’s head and the printed word “Tiger” above thereof. The goods specified in the application are not limited to ready-made or made-to-order clothing, and, as stated by the Examiner of Interferences, are identical with the goods upon which the opposer has established the nse of its mark. The proof shows that the opposer, while mainly engaged in selling ready-made- clothing, occasionally makes clothing to order from special measurements. It appears that, beginning in 1891, the opposer used as a mark on its goods the word “Tiger,” and a full length representation of two tigers pulling in opposite directions at a pair of trousers. The use of this mark has been discontinued for a number of years, for a mark which was registered as afore described. The opposer advertises its goods in printed catalogues, and calendars, and pictures for hanging in stores, in which it uses the full-length representation of a tiger. The slogan, as expressed by its witnesses, used by the opposer, is “The Tiger Brand.” Both parties have testified they did not know of the use by the other of their respective marks until a short time before the institution of this opposition. The Examiner of Interferences held that the mark of the applicant sufficiently resembled that of the opposer to produce probable confusion in trade. On appeal the Commissioner affirmed the decision of the Examiner of Interferences. The evidence on behalf of the applicant shows that subsequently to the adoption and use of the trademark by the I. M. Bobinson, Norton, & Company the applicant adopted as a trademark used upon its goods a figure showing the head and part of the b.ody of a tiger emerging from a hole in the ground, surrounded with certain words. It next used a tiger’s head in a circle surrounded by the words, “The Boyal Tailors, Chicago-New York.” The open mouth of the tiger carries an inscription which reads, “Pay less and dress better.” Its next three labels were of a similar character. It next used a tiger’s head, with the inscription underneath reading, “The Boyal Tailors, Chicago-New York.” Its last representation, adopted and used in 1918, consists of the mark offered for registration, namely, the full-length recumbent figure of a tiger on a pedestal, and or the pedestal the words “The Boyal Tailors, Chicago-New York” ' ' There is some evidence of confusion in trade resulting from the use of these marks, but we agree with the Commissioner that there is sufficient similarity to cause confusion in the minds of the purchasing public. As the opinion of the Examiner of Interferences, and the Commissioner contained a full discussion of the matters in controversy, we content ourselves with citing in support of this conclusion the following cases: Re Braadland, 37 App. D. C. 602; Carmel Wine Co. v. California Winery, 38 App. D. C. 1. The decision is affirmed. Affirmed.