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opinion of the board. While I do not disagree with anything said in the majority's opinion, I do not accord the survey evidence, by which it was attempted to show "secondary meaning," the significance apparently accorded it by the board. The examiner accorded it none. I do not agree with the board's statement that “This case turns upon the sufficiency of applicant's evidence” of “secondary meaning."
The examiner in this case was of the view, as the board reported, that CUSTOM-BLENDED “is 80 highly descriptive of applicant's blended gasoline that it is incapable of becoming distinctive as claimed.” [My emphasis.] If that is so, registration must be refused under 15 USC 1052(e) (1) no matter what evidence of alleged "secondary meaning” is adduced; in other words, under the facts of this case the law proscribes the possibility of a de jure "secondary meaning,” notwithstanding the existence of 15 USC 1052(f) and a de facto "secondary meaning.” In re Deister Concentrator Co., 48 CCPA 952, 963 et seq., 289 F. 2d 496, 129 USPQ 314 (1961), and cases cited therein.
In my opinion, CUSTOM-BLENDED is so highly descriptive that it cannot, under the law, be accorded trademark rights even though at some times, or to some people, or in some places, it has a de facto secondary meaning. My view was expressed by the examiner. I think that conclusively disposes of the matter. While I see no objection to pointing out to appellant that its evidence has not established “secondary meaning," I am unwilling to lead appellant or others to think that the fault was in the quantity or quality of its evidence rather than in the descriptiveness of the words sought to be registered. Appellant should not be encouraged to try again to prove “secondary meaning." The only particular in which I do not fully agree with the examiner is that he said the word "custom" in CUSTOM-BLENDED “has very little trademark significance." I think it has none.
Appellant has argued that the descriptive term for its gasoline is "pump-blended.” I do not question that is a descriptive—or as appellant calls it "generic”_term; but a product may have more than one generically descriptive name. Because one merchandiser has latched onto one of the descriptive terms does not mean it can force its competitors to limit themselves to the use of the others, which appellant, it seems to me, is trying to do here. All of the generic names for a product belong in the public domain. The product itself, for example, is called gasoline in the United States but petrol in England. Clearly both of those names must remain free of proprietary claims, in either country. So it is, in my view, with respect to pump-blended and custom-blended. The examiner stated the factual basis for this view in pointing out that “custom," as in custom-built, custom-service, custom-cut, custom-made, custom-tailored, custom-work, etc., merely indicates that it is done according to the customer's desire. That is exactly how appellant's gasolines are pump-blended—to give the customer what he asks for. I can think of no descriptive term which is more apt. In re Bailey Meter Co., 26 CCPA 1136, 102 F. 2d 843, 41 USPQ 275 (1939).
11 think the solicitor erred in arguing the case solely on the basis that the only issue before us is the sufficiency of applicant's evidence to show that CUSTOM-BLENDED now serves as an indication of origin. That was not the examiner's ground of rejection. It does not appear to me that the board ever made a different one and the examiner's refusal to register was affirmed. At best, the sufficiency of the evidence is a second-string argument.
FISHER, Judge, dissenting:
Under the doctrine of "secondary meaning," a trademark, though originally descriptive of a type of product, is nonetheless entitled to registrtaion if the mark has, by association with a business, come pri
а marily to identify its user, rather than the product, to that part of the public interested in contracting with the trademark user. Application of Automatic Radio Mfg.Co., 56 CCPA 817, 404 F. 2d 1391, 160 USPQ 233 (1969). Whether a descriptive mark has acquired secondary meaning depends upon the particular facts of each case. W. E. Bassett Co. v. Revlon, Inc., 354 F. 2d 868, 148 USPQ 170 (2d Cir. 1966).
Briefly, it has been shown that appellant has used the mark in question for its gasoline exclusively and continuously over a period of some twelve years. There is evidence of extensive advertising of and sales of large volumes of gasoline under that mark during this period. Surveys of record suggest that in at least two areas where there are other marketers of multi-grade, pump-blended gasoline, the term CUSTOMBLENDED is associated in the public mind with this appellant in a preponderance which can only be accounted for by recognition of origin. There is no evidence which would imply that the mark is of such a descriptive nature that granting trademark rights therein to the user would deprive others of their right to normal use of the language.
In light of these facts, it is respectfully submitted that the decision of the Trademark Trial and Appeal Board should be reversed and registration granted on the basis that the mark CUSTOM-BLENDED has acquired secondary meaning within Section 2(f) of the Act (15 USC 1052(f)).
! I take judicial notice that, as anyone can observe on the streets of Washington, if one looks past the CUSTOM-BLENDED pumps of a Sunoco station at the front of the apparently standard service station building, one sees the words CUSTOM SERVICE in red letters a foot high across the white front of the building.
426 F.2d 828; 165 USPQ 720
IN RE FRANK PASSAL (No. 8327)
1. PATENTABILITY-INVENTION-IN GENERAL
Just as piecemeal reconstruction of prior art by selecting teachings in light of applicant's disclosure is contrary to requirements of 35 USC 103, so is the failure to consider as a whole the references collectively as well as individually.
2. PATENTABILITY-INVENTION-IN GENERAL
Obviousness does not require absolute predictability.
United States Court of Customs and Patent Appeals, May 28, 1970
Appeal from Patent Office, Serial No. 286,170
Lewis C. Brown, attorney of record, for appellant. Arnold B. Christen (Christen, Sabol & O'Brien), of counsel.
8. Wm. Cochran for the Commissioner of Patents, Raymond E. Martin, of counsel.
(Oral argument May 7, 1970 by Mr. Martin ; appellant submits on brief]
Before Rich, ALMOND, BALDWIN, LANE, Associate Judges, and FISHER, Judge,
sitting by designation. ALMOND, Judge, delivered the opinion of the court:
This is an appeal from the decision of the Patent Office Board of Appeals, adhered to on reconsideration, affirming the rejection of claims 1, 2, 5–13, 15–18 and 20 of appellant's application. Claims 3, 4, 14 and 19 have been allowed.
The invention relates to a process for high-speed bright nickel plating as well as to the composition of an electrolytic nickel plating bath. Prior art nickel plate production rates are undesirably slow, the specification states, while attempts to speed them up through using high plating current densities and various primary and secondary brighteners or bath additives have resulted in inadequately leveled deposits. Appellants have allegedly solved these prior art problems by maintaining a cathode current density at a level of at least 10 asd (amperes per square decimeter) and a high relative velocity between the nickel plating bath and the cathode representing the material to be plated. This velocity may be maintained by either impinging a stream of electrolyte onto the cathode or by various techniques such as vibration, rotation of the cathode and pumping of the electrolyte past the cathode.
1 Serial No. 286,170, filed June 7, 1963, for "High Speed Bright Nickel Plating."
Claims 1 and 16 are illustrative:
1. The method of high-speed electroplating a bright nickel deposit which comprises electroplating said nickel deposit from a nickel bath containing soluble nickel salts and a primary brightener consisting essentially of a brightening and leveling quantity of phenylpropiolamide, maintaining the cathode current density during said plating at a level of at least 10 asd, and maintaining a high relative velocity between said nickel bath and said cathode thereby obtaining a highly lustrous, leveled nickel plate over wide cathode current density range.
16. An aqueous electrolytic nickel bath for high-speed electrodeposition of bright nickel plate which contains soluble nickel salts and as additive a composition selected from the group consisting of (a) a primary brightener consisting essentially of at least 0.8 g/1 of phenylpropiolamide and (b) a secondary brightener together with 0.2-0.6 g/1 of phenylpropiolamide.
Claims 2 and 5 depend from claim 1 with claim 2 providing that
Claims 2 and 5 depend from claim 1 with claim 2 providing that phenlypropiolamide (hereinafter PPA) is the sole brightening and leveling additive, while claim 5 recites that a secondary brightener is also present.
Claims 6–9 depend from claim 5. In claim 6, the secondary brightener is limited to one selected from aromatic sulfonates, sulfonamides and sulfimides, while claim 7 limits the secondary brightener to saccharin. In claim 8, the amounts of PPA and secondary brightener present in the bath are limited to 0.2-0.6 g/1 (grams per liter) and 1-10 g/1, respectively. Claim 9 limits the amount of PPA in the bath to 0.2-0.6 g/1 and the amount of saccharin to 1-4 g/1.
Claims 10–13 all depend from claim 1. Claim 10 limits the cathode current density to a range of 10–120 asd, and claim 11 limits the relative velocity between the nickel bath and the cathode to 60-320 cm/second. According to claim 12, the relative velocity is obtained by impinging the nickel bath against the cathode and in claim 13 the relative velocity is described as obtained by directing a stream of electrolyte against the cathode. Claim 15 is an independent claim describing a process similar to that of claim 1, limiting the amount of PPA to 0.2–0.6 g/1 and calling for inclusion of 1-10 g/1 of a secondary brightener. The current density range is also defined as maintained at 20– 60 asd. Claim 17 depends from claim 16 and limits the secondary brightener to saccharin. Claim 18 depends from claim 17 and recites that the saccharin is present in an amount of 1-4 g/1. Claim 20 is drawn to an aqueous electrolytic nickel bath consisting essentially of 250-500 g/1 nickel sulfate, 20-60 g/1 boric acid and a secondary brightener together with 0.2–0.6 g/1 phenylpropiolamide.
The references relied upon are: Kennedy et al. (Kennedy)
2, 363, 973 Nov. 28, 1944 Boelter, Jr. (Boelter)
2, 870, 709 Jan. 27, 1959 Hartman et al. (Hartman)
3, 139, 393 June 30, 1964 Wesley, W. A. et al. (Wesley), "Electrodeposition of Nickel at High Current Density,” 36th Annual Proceedings of the American Electroplaters Society, pp. 79–91 (1949).
Hartman discloses the electrodeposition of semi-bright nickel deposits from nickel-plating Watts-type (200-400 g/1 nickel sulfate, 30–120 g/1 nickel chloride, 30–50 g/1 boric acid) baths containing as the brightening additive PPA. The baths are said to have excellent leveling and covering power with relatively ductile, finely grained, milky and lustrous deposits obtained. Conventional bath operating conditions including agitation are said to be applicable. Deposition from baths containing PPA under high current density results in de posits slightly more grainy and less lustrous. Current density of 0.5–12 asd may be used to obtain uniform lustrous semi-bright nickel electrodeposits when the bath contains, in addition to PPA, an effective amount of an additive such as acetylacetone. PPA is said to act as an auxiliary brightener in conjunction with a conventional secondary brightener such as saccharin to yield mirror-bright nickel. Examples using PPA alone are given in table form.
Wesley discloses that increased agitation of simple nickel plating baths, i.e., not containing brightener additives, permits higher current densities and faster plating rates.
Boelter discloses high-speed deposition of copper from a conventional bath by a method of impinging the electrolyte onto the cathode at flow rates of 500-1000 ft./min.
Kennedy discloses a copper electroplating method wherein the cathode is rotated, or motion between it and the electrolyte otherwise caused, and the electrolyte strongly agitated as by pumping or otherwise since thus a smooth coating is laid for a given current density and higher current densities may be employed.
Claims 1, 2, 5–13, 15–18 and 20 were rejected under 35 USC 103 as unpatentable over Hartman in view of Wesley, and Boelter or Kennedy. Additionally, all the above claims except 15 were further rejected under 35 USC 103 on Hartinan alone. Composition claims 16-18 and 20 were also rejected under 35 USC 102 as fully met by Hartman.
The board sustained all the above rejections except the rejection of claim 11 on Hartman alone. In its extensive treatment, the board considered first the rejection under 35 USC 102, stating: All that is required to meet the terms of claims 16, 17, and 18 is a nickel bath containing soluble nickel salts, 0.2-0.6 g/1 of phenylpropiolamide, and a secondary brightener, specifically, saccharin.