FRANKLIN KNITTING MILLS, Inc., v. KASSMAN & KESSNER, Inc.

FRANKLIN KNITTING MILLS, Inc., v. KASSMAN & KESSNER, Inc. (Court of Appeals of District of Columbia. Submitted May 11, 1926. Decided June 1, 1926.) No. 1856. Trade-marks and trade-names and unfair competition <2=43 — Trade-mark “Fashionknit” held not so deceptively similar as to preclude another’s registration of trade-mark “Fashion Park” for use on similar goods. Trade-mark “Fashionknit” held not so deceptively similar as to preclude another’s registration of trade-mark “Fashion Park” for use on similar goods; the word “fashion" not being susceptible of exclusive appropriation. Appeal from the Commissioner of Patents. Proceeding by Kassman & Kessner, Inc., for registration of trade-mark, opposed by the Franklin Knitting Mills, Inc. From a decision dismissing the opposition, opposer appeals. Affirmed. E. M. Evarts, of New York City, for appellant. Andrew Foulds, Jr., of New York City, 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 words “Fashion Park” as a trade-mark on hats and caps; the basis of the opposition being the prior use and registration of the mark “Fashionknit” on similar goods. The Assistant Commissioner ruled that the word “fashion,” being descriptive as applied to wearing apparel of any kind, is not susceptible of exclusive appropriation; that “to sustain this opposition would be to hold no one could register as a trade-mark the descriptive word ‘fashion’ combined with any other word whatever, because almost no other word so combined could be more dissimilar to the word ‘knit’ than the word ‘park.’ This would, in effect, substantially grant opposer exclusive rights to the word ‘fashion’ alone.” This ruling is in harmony with the opinion in Franklin Knitting Mills, Inc., v. Fashionit Sweater Mills, Inc. (D. C.) 297 F. 247, where the court said: “As applied to neckties, ‘Fashionknit’ certainly means ‘knit in fashion’ or ‘fashionably knit’; it can mean nothing else, and the mind naturally attributes some moaning to the combination of such usual words.” Since both parties have the right to use “fashion,” the word “Park” sufficiently distinguishes appellee’s mark from that of appellant. The decision therefore is affirmed. Affirmed.