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calls his flexible material a wrapper, in fact it forms only one side of the package, being intended solely to allow the package to display its contents.

Glover discloses a box with a captive telescoping lid connected to the box by a strip of the same material from which the box is made. This strip is scored, the only requirement of the scoring being that it make the connecting piece flexible enough to fold into the box when the cover is placed upon it. Of course, the fact that cardboard can be made flexible by scoring, which is the only point at which Glover comes near the present application, hardly needs the citation of a reference. Thus, a person skilled in the art seeking to make a better package than Jezalik would learn from these last three references that a cardboard strip can be made flexible by scoring it transversely, that folded sections of a strip of cardboard will not fit into a box unless they are no wider than the height of the box and that a piece of cellophane can be attached to a piece of cardboard to form a composite blank. We do not believe that these teachings, when combined, would make the structure of the boxes and blanks claimed in this application and their advantages obvious to one skilled in the art.

We think that the present application is a distinct improvement of Jezalik and represents an advance in the art not obvious, having patentable novelty. [1] The art is a crowded and comparatively simple one and in such an art great advances are not to be expected. However, patentability will not be denied to an invention which accomplishes a small but nevertheless genuine improvement, not thought of by others and not obvious. "*** [I]t is elementary that small changes in a crowded art may constitute invention." In re Baum, 29 CCPA 719, 123 F.2d 662, 51 USPQ 470.

The box of claim 26 differs from that of claim 27 only in that it omits the two side walls of the latter. It does not appear that this omission impairs any of the advantages which the applicant's invention has over Jezalik except the ability of the tray to contain small articles. It does not, however, affect its ability to support the contents. [2] As to claims 22 and 24, which are directed to the blank, there is nothing new about a composite blank consisting of relatively stiff and relatively flexible material. However, the patentability of the blanks of these two claims does not depend upon any novelty in the idea of a composite blank. The claims are directed to blanks suitable for the erection of the wrapped boxes of claims 26 and 27. Since we have found that these wrapped boxes are patentable over the prior art, it follows that claims for the blanks from which they are made are allowable.

For the foregoing reasons we reverse the decision of the Board of Appeals.

47 CCPA 1116; 760 O.G. 505; 279 F. 2d 526; 126 USPQ 381

Decided July 6, 1960

IN RE HEHR MANUFACTURING COMPANY (No. 6563)

TRADEMARKS

1. EVIDENCE-CONTINUOUS, EXCLUSIVE, AND DISTINCTIVE USE-MARKS AND NAMES SUBJECT TO OWNERSHIP-IN GENERAL-MARKS AND NAMES SUBJECT TO OWNERSHIP-SECONDARY MEANING

Whether trademark is eligible for registration depends on many factors; with respect to degree of proof required to establish a secondary meaning sufficient to identify applicant's goods, statute is silent except for suggestion that substantially exclusive use for five years immediately preceding filing of application may be considered prima facie evidence; Congress has chosen to leave exact degree of proof necessary to qualify mark for registration to judgement of Patent Office and courts.

2. MARKS AND NAMES SUBJECT TO OWNERSHIP-SECONDARY MEANING-MARKS AND NAMES SUBJECT TO OWNERSHIP-SYMBOLS, Letters and NUMERALS

In determining whether label or design, which constitutes background for, or is otherwise associated with name mark, has separate trademark significance, court applies general principle that, unless design is inherently distinctive, it is registerable only if sufficient evidence is presented to show that it has acquired secondary meaning as a trademark; exact kind and amount of evidence necessary to establish such meaning depends on circumstances of the particular case.

3. MARKS AND NAMES SUBJECT TO OWNERSHIP-COLOR-MARKS AND NAMES SUBJECT TO OWNERSHIP-SYMBOLS, LETTERS AND NUMERALS

Square red label, upon which applicant's secondary trademarks are usually placed, is registerable as trademark since record supports applicant's position that label sufficiently distinguishes and identifies its goods as to justify registration.

United States Court of Customs and Patent Appeals, July 6, 1960

APPEAL from Patent Office, Serial No. 17,912

[Reversed.]

Moore & Hall, Reed C. Lawlor (Elliott I. Pollack of counsel) for appellant. Clarence W. Moore for the Commissioner of Patents.

[Oral argument March 4, 1960, by Mr. Pollock and Mr. Moore] Before WORLEY, Chief Judge, and RICH and MARTIN, Associate Judges.

WORLEY, Chief Judge, delivered the opinion of the court: This appeal is from the decision of the Trademark Trial and Appeal Board of the United States Patent Office affirming the examiner's refusal to register on the principal register appellant's trademark consisting of "a square red label, upon which applicant's secondary trademarks are usually placed," for use on windows and ventilators for automoblie trailers. Refusal was on the ground that

appellant had not satisfactorily shown that the mark identified or distinguished its goods.

The facts do not appear to be seriously disputed. The board's interpretation thereof is reflected in the following excerpt:

The record shows that applicant marks its products by sticking gummed labels thereon. These labels are in the form of squares and are colored red. On the various square red labels appears a large lower case "h", surrounded by "A HEHR HALLMARK MOBILE HOME WINDOW"; or the name "HEHR" displayed on a diagonal black panel surrounded by "MOBILE HOME WINDOWS" or by "NO DRAFT VENTS ... TRAILER WINDOWS"; or a large letter "X" surrounded by "A NEW HEHR MOBILE HOME WINDOW". These composites are registered.

The record also shows that the three composites have been rather extensively advertised with the phrase "LOOK FOR THESE EMBLEMS" featured prominently. Some of the advertisements have directed attention to "these red stickers", but the "red stickers" reproduced show the entire composites.

The applicant goes into greater detail in its efforts to show that the red square label identifies its goods as reflected by the following excerpt from its brief:

Petitioner adopted the RED SQUARE labels here involved in 1950, and has continuously employed the same since that time. Although secondary marks always appear on the RED SQUARE when applied to goods, it was early recognized that the RED SQUARE per se made a marked impression in the trade and on the purchasing and viewing public; and Petitioner accordingly instructed its advertising agent to emphasize the RED SQUARE as identifying the goods involved. As a result, a series of advertisements were prepared commencing in about March 1954, and continuing to date, which repeatedly emphasized the shape and color of the RED SQUARE per se as a trademark identifying Petitioner's goods. Over the years, some $112,000 has been spent in advertisements, of which amount some $30,000 is directly attributable to having the RED SQUARE, in advertisements, printed in the color red whenever possible. The advertisements further contain slogans stressing the RED SQUARE as an identifying trademark; and attention is specifically invited to Exhibits M, P, T, U, V, W, A-2, A-3, B-5 and B-6, all of which contain phrases such as "Always look for the Red Sticker," "Look for these red stickers, they are your guide to quality," "These red stickers are your assurance of quality, and the like. These and other exhibits have been submitted to the Court with a stipulation filed August 21, 1959, and by Patent Office letter dated September 17, 1959.

Certain of the printed advertisements, e.g. see Exhibits V, W, and X, further illustrate Petitioner's windows with a red sticker thereon, but without any secondary mark or composite mark evident in said stickers. Moreover, when color printing was not available, black-and-white advertisements included descriptive information stressing the fact that "red stickers" were employed to identify Petitioner's goods (see, for example, Exhibits A-2, A-3 and B-5).

In addition, the record contains the result of a survey conducted among trailer manufacturers. Although we agree with some of the criticism which the board directs at the survey, it seems to us that,

on the whole, it is adequate to show that a majority of those interviewed associated the instant label with appellant's products.

[1] Whether a trademark is eligible for registration depends on many factors. With respect to the degree of proof required to establish a secondary meaning sufficient to identify an applicant's goods, the statute is silent except for the suggestion that substantially exclusive use for a period of five years immediately preceding filing of an application may be considered prima facie evidence. Congress has chosen to leave the exact degree of proof necessary to qualify a mark for registration to the judgment of the Patent Office and the courts.

[2] On several occasions this court has considered whether a label or design which constitutes a background for, or is otherwise associated with a name mark, has separate trademark significance. In re Burgess Battery Co., 27 CCPA 1297, 112 F. 2d 820, 46 USPQ 39; In re Hillerich & Bradsby Co., 40 CCPA 990, 204 F.2d 287, 97 USPQ 367; In re Swift & Co., 42 CCPA 1048, 223 F. 2d 950, 106 USPQ 286; In re Hillerich & Bradsby Co., 40 CCPA 990, 204 F. 2d 287, 97 USPQ 451; and In re E. J. Brach & Sons, 45 CCPA 998, 256 F. 2d 325, 118 USPQ 308. The general principle derived from those decisions is that unless a design is inherently distinctive it is registrable only if sufficient evidence is presented to show that it has acquired secondary meaning as a trademark; and that the exact kind and amount of evidence necessary to establish such meaning necessarily depends on the circumstances of the particular case.

[3] It goes without saying that we respect the views of the board, but in our opinion the record as a whole supports the applicant's position that the instant label sufficiently distinguishes and identifies its goods as to justify registration. It therefore becomes necessary to reverse the decision appealed from.

47 CCPA 1118; 760 O.G. 763; 280 F. 2d 151; 126 USPQ 398

Decided July 13, 1960

PIONEER HI-BRED CORN COMPANY v. JOSEPH H. WELP (No. 6564) TRADEMARKS

1. IDENTITY AND SIMILARITY-HOW DETERMINED APPEARANCE, MEANING OB SOUND IDENTITY AND SIMILARITY-WORDS-NOT SIMILAR

Resemblance between "Hy-Croft" and "Hy-Line" is confined to "Hy"; since parties deal in hybrid poultry, "Hy" has suggestive significance and, therefore, is not entitled to as great weight in determining likelihood of confusion as an arbitrary word or syllable; "Croft" and "Line" are not similar; even though "Hy" is prefixed to "Croft" and "Line," resultant marks create such distinctly different impressions that confusion is not likely.

United States Court of Customs and Patent Appeals, July 13, 1960 APPEAL from Patent Office, Opposition No. 36,610

[Affirmed.]

Dale L. Porter (Rudolph L. Lowell of counsel) for appellant.

Robert B. Harmon, John H. Lewis, Jr., Harvey B. Jacobson (Robert C. Garber of counsel) for appellee.

[Oral argument May 6, 1960, by Mr. Lowell and Mr. Garber]

Before WORLEY, Chief Judge, and RICH, MARTIN and SMITH, Associate Judges, and Judge WILLIAM H. KIRKPATRICK.1

WORLEY, Chief Judge, delivered the opinion of the court:

This appeal is from the decision of the Trademark Trial and Appeal Board of the United States Patent Office dismissing an opposition by appellant to appellee's application for registration of "Hy-Croft" as a trademark for poultry hatching eggs and baby chicks. The opposition was based on appellant's prior registration and use of "Hy-Line" as a trademark for poultry, seed corn, and hatching eggs. Appellant's priority of use is not disputed, thus the sole issue is whether the marks are so similar that their concurrent use on the instant goods would be likely to cause confusion or mistake or to deceive purchasers within the meaning of Section 2(d) of the Lanham Act.

The board found that the differences in sound and meaning of the marks are such that there would be no reasonable likelihood of confusion.

[1] The resemblance between the marks is confined to the introductory syllable "Hy." The record shows that both parties deal in hybrid poultry, and "Hy" therefore has a suggestive significance, hence is not entitled to as great weight in determing likelihood of confusion as an arbitary word or syllable. Shoe Corp. of America v. The Juvenile Shoe Corp. of America, 46 CCPA 868, 266 F. 2d 793, 121 USPQ 510.

There is no similarity between "Line" and "Croft." We agree with the board that even though the suggestive syllable "Hy" is prefixed to those words, the resultant marks create such distinctly different impressions that confusion would not be likely.

The cases relied on by appellant have been examined, but in our opinion are not sufficiently in point to be controlling here. The decision is affirmed.

1 United States Senior District Judge for the Eastern District of Pennsylvania, designated to participate in place of Judge O'Connell, pursuant to provisions of Section 294 (d). Title 28. United States Code.

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