became widely and descriptively known as "cloudy ammonia." 2 This product, under the label "C. C. Parsons' Household Ammonia," continued substantially unchanged until 1948.

The application on appeal relies on section 2(f) of the Lanham Act (15 U.S.C. 1052(f) and states:

The mark has become distinctive of applicant's goods as evidenced by the showing submitted separately.

That showing consists of an affidavit of Parsons' president, Philip C. Ingham, who, before becoming president in 1955, had been with the company since 1938 as salesman, sales manager and vice president. To his affidavit there are attached numerous exhibits. One of them is a book published in 1951 on the 75th anniversary of Parsons' single product, "Household Ammonia." After reciting how the company and its product had weathered World War I, the Great Depression, and World War II, it says:

The war over, the business continuously increased. But the world was changed and full of new ideas. The magic of modern chemistry had produced a host of synthetic detergents that were different and interesting. None of them appeared to take the place of ammonia as a cleanser, but they did have certain quite remarkable properties.

In August 1946, it occurred to Mr. P. C. Ingham, Sales Manager of the Parsons Ammonia Co., that if these properties could be incorporated in Household Ammonia without destroying its essential character, he would have something that would be a salesman's dream come true: a product so obviously superior that no words, only a demonstration, would be needed to sell it. It was a good dream and experiments were enthusiastically undertaken. They were not encouraging; it was like trying to mix cats and dogs.

But in September 1947 after a year of continuous experimentation and equally continuous failure, success was finally achieved. A compound was produced that looked so good that a patent on it was immediately applied for.

This was Parsons Household Ammonia still, but something new had been added. It was not soapy yet it formed a thick suds at the slightest provocation. So it was decided to call the new product Parsons Sudsy Household Ammonia. The foregoing is advertising. The record in this case shows that the formulation for the new sudsy product, essentially a combination of synthetic detergent and aqua ammonia, was worked out for Parsons by Foster D. Snell, Inc., consulting chemists in New York City, carrying out an idea conceived by Mr. Ingham.3

The record also shows that to avoid deteriorating the value of the old "C. C. Parsons' Household Ammonia" on hand in stores, the new synthetic detergent-containing product was gradually substituted as new orders were filled, beginning in 1948, without making any change

The market significance of the cloudy appearance of Parsons' original product is made clear by the following which appeared on the label used in 1881, as shown in the 75th anniversary booklet hereinafter referred to: "Clear ammonia irritates the skin and discolors white fabrics. Household ammonia is clear ammonia combined with substances which give a cloudy appearance and prevent all injurious action."

Beyond showing that the new product is a composition containing aqua ammonia and a synthetic detergent and probably other ingredients to make blending possible and prevent precipitation on standing, the record does not disclose just what the composition is. The record indicates that Parsons obtained a patent on it on May 29, 1951, on application Serial No. 6351, but the patent is not of record nor is its number disclosed.

in the front labels on the bottles. Bottles also carried a back label, however, and in 1948 it was modified to have a light blue background of small soap bubbles and to say at the top, "PARSONS' Sudsy HOUSEHOLD AMMONIA." The "Directions" printed at the bottom read, in part:

Two ounces to each gallon of waterSWISH UP SUDS in dish pan or pail. Use more or less PARSONS' HOUSEHOLD AMMONIA as required *** speedy penetrating suds.

In 1949, Mr. Ingham testified, Parsons put "NEW" and "SUDSY" on the front label where previously it had said "ONE QUART" (see illustration, infra) but, when viewing a bottle on the shelf, he said, "It was so small you couldn't see it." A new back label was designed in which a little more prominence was given to the word "Sudsy" in the heading, that word being enlarged, in blue, and in quotation marks, but still in the same phrase as in 1948. The directions still told the user to "swish up suds," as they do to this day.

In 1950 the word "sudsy" in prominent lower-case type was added to the top of the front label, located in a rectangular panel with a relatively inconspicuous background representing bubbles, as shown in the facsimile we have here reproduced together with the top portion of the back label and a reproduction of the application drawing.

Since Parsons has not relied for registrability on the bubble background, but only on the significance of the word "sudsy," we are disregarding the background in this discussion.

The specimen front label attached to the application contains one added feature not shown in the above illustration, namely, a panel, about half the height of the top panel in which "sudsy" appears, extending across the label directly beneath the word "AMMONIA" and filled by the words "ALL-PURPOSE CLEANER." Mr. Ingham said this change was made in 1956. The label shown above therefore represents the one in use during most of the period between first use in 1948 and the filing of the application in 1957. At the time of application, therefore, the prominent words on the front label, where one would expect to find whatever trademark was being used on the product, were "SUDSY C. C. PARSONS' HOUSEHOLD AMMONIA ALL-PURPOSE CLEANER." "C. C. PARSONS' HOUSEHOLD AMMONIA" is in white letters on a black background, the lattice-work design is black on a gold background, the "sudsy" panel is printed in red on white and the "ALL-PURPOSE CLEANER" panel in white on red. The antidote notice is red on white. The Board summed up opposers' position thus:

Each of the opposers alleges that it is engaged in selling ammonia for home use; that the term "sudsy" describes a characteristic of such product; that it and others use the term "sudsy" on labels for their ammonia products for purposes of description; and that a registration of "SUDSY" to applicant would interfere with the right to use that term in connection with the merchandising and sale of ammonia.

Does "sudsy" describe the product?

The first issue which emerges in this case is the descriptiveness of the common English word "sudsy" in the context of its use on "C. C. Parsons' Household Ammonia." This necessitates consideration of the characteristics of the product.

The pre-1948 Parsons' ammonia, the cloudy type, did not form substantial suds when shaken in its bottle nor did it make a solution, when diluted for use, in which suds could be worked up. The change in the product which took place in 1948, the addition of or combination with a synthetic detergent,* resulted in a new product which did both. The first advertisement which launched the promotion of the new product was headed, "NEW Parsons' Household Ammonia now with exclusive 'SUDSY' ACTION." An early promotion technique involved a display set up in stores surmounted by a panel reading, "It's New TRY THE 'SUDSY' TEST Shake the Bottle" and pro

Technically, both common soap, apparently used to cloud ammonia in some instances, and aqua ammonia itself are "detergents," which word is defined in Webster's New Collegiate Dictionary as meaning: "A cleansing agent, as water, soap, or a soluble or liquid preparation ('soapless soap'), usually synthetic, that resembles soap in the ability to emulsify oils and hold dirt in suspension." The term "detergent" as used by the parties herein is in the "soapless soap" synthetic sense, though Parsons' witnesses pointed out that ammonia is a detergent too. We do not believe many consumers would know that but would think of detergent ammonia as aqua ammonia containing one of the many now popular synthetic liquid detergents commonly sold for household washing and cleaning uses.

vided two bottles hanging by strings labeled "Old" and "New." Mr. Ingham testified as follows about the name and the display:

XQ368. With regard to your adoption of the name for the product, you mentioned that "Sudsy” had a close association with the product. What, particularly, did you mean by that? A. Well, as I say, it was really sudsy, and when you put it in water, it sudsed. Other ammonias wouldn't.

XQ369. You mean the cloudy one? A. The "Sudsy" ammonia would. No, cloudy ammonias across the country won't do it today, unless they have detergents in them.

XQ370. Incidentally, with regard to Exhibit 6, which I don't have handy, but which was the photograph of the display which said "Try the 'Sudsy' Test," what was the "Sudsy" test? A. I will tell you that, not because I am the instigator. The "Sudsy" test was this: You took one bottle, put regular ammonia, whether it was A & P or whatever it was, in there with water, equal amounts, and did the same thing with "Sudsy." You shook them up. Nothing happened with the regular ammonia. "Sudsy" ammonia, the suds almost threw the cap off. So the woman could shake it on the thing there and find the difference immediately.

We add thereto the fact that the new product is sudsy whether water is added to it or not. After all, it is primarily "gassed water," as Mr. Ingham testified. (See footnote 1.) One or two shakes of a partly filled bottle of Parsons' detergent ammonia, sold under the above illustrated label, which material is in evidence, fills the bottle to its neck with long-lasting suds.

Mr. Ingham prepared a "Chronology" of the development and promotion of the new product which is in evidence. Under the year 1948 the following items are of interest:

June. Pre-marketing test in Washington, D.C. We were anxious to break into print before someone beat us to it.

September. On the 16th we finally were able to really "cut loose" and promote SUDSY in suitable fashion. New York (metropolitan area) 20 newspapers plus a 5-day week radio spot, with announcer shaking the old and new bottles for luncheon audience. This was excellent.

*

Comment

The highlight of our SUDSY formula is the fact we can demonstrate its fine qualities to every buyer through our bottle test *** and, in some instances, the "sudsing action" in water in wash basin. Up to this time no one has been able to demonstrate any ammonia, so every buyer we have contacted has evinced both surprise and interest. The great point is: We, through our efforts have produced an ammonia that in time will make all ammonia of present day origin obsolete.

In the Chicago area we hope to really build and beat our competition to the tape, for there is no doubt that we will see "foaming," "bubbling," and even "sudsy" types of ammonia in 1949. However, we are first and there will be lots of delay and headaches for the ones who try to copy our formula.

"Sudsy" is a common word defined in Webster's New International Dictionary, 2nd Ed. (1937) as meaning "Full of suds; frothy; foamy." It is unnecessary to labor the issue of descriptiveness because Parsons'

witnesses and briefs admit the descriptiveness of the word "sudsy." One instance should suffice. Mr. Ingham, president of Parsons, asked on cross examination about an application to register the word, filed July 29, 1950, and why it was abandoned, replied, "Because, at that time, there was no question that the word was descriptive, so we didn't pursue it."

[1] We find it impossible to reach any conclusion from such admissions, and there are many like it, other than that "sudsy ammonia" is a common descriptive name for the product, contrary to the Board's finding on this point. The Board said:

In fact, the common descriptive name of the goods is ammonia, and the terms "clear," "cloudy," "detergent" and "pine" indicate the types of ammonia. There seems to be implicit in this statement an assumption, for which there is no legal foundation, that a product has only one common descriptive name, and that such name here is "detergent ammonia." Consider, however, that the product commonly known as tooth paste is also commonly known as dentifrice and dental cream. A gravestone is also commonly known as a headstone, a tombstone and a monument. One common descriptive name of the product to which "sudsy" is applied is "detergent ammonia" but proof of this fact does not establish that "sudsy ammonia" is not also a common descriptive name. Another descriptive name is "ammonium hydroxide solution containing synthetic detergent." However, in considering whether "sudsy ammonia" is a common descriptive name of the product we cannot fail to take into consideration the class of people who will commonly be using it and what they will commonly call it. The record here shows, through the testimony of Mr. Ingham and in other respects, that the product is intended, not for chemists, but in his words for "Mrs. Consumer," the average housewife. Assuming her familiarity with clear ammonia or cloudy ammonia or even pine-scented ammonia, the thing she is most likely to remember about this new product, especially after having once used it or seen it demonstrated, is that it is sudsy ammonia. That is the one characteristic that was "plugged." It seems to us that this is as clearly its common descriptive name as is "detergent ammonia." Surely "sudsy ammonia" is as clearly a common name as is "cloudy ammonia."

For these reasons we are constrained to disagree with one of the main premises of the Board's decision, that the record does not show that "sudsy" is a type designation for an ammonia compound. There is no apparent reason for omitting "sudsy" from the list of type designations. Not one of the others as aptly describes the compound here involved.

Uses of "sudsy" by others

Opposers' main point is that the word sought to be registered is so highly descriptive that they and others should be left free to use it.