from the goods of another and that, therefore, such taste or odor should be regarded as the proper subject matter for trade-marks. The mark in this instance, we think, consists merely in a device which is descriptive of the goods with which it is used. Nothing could be more descriptive of an article of manufacture than the article itself. The proposed mark consists of the merchandise itself and under the authorities cited in In re General Petroleum Corporation of California, supra, such a mark is not entitled to registration. The decision of the Commissioner of Patents is affirmed. Affirmed. [U. S. Court of Customs and Patent Appeals] THE SIMONIZ COMPANY v. PERMANIZING STATIONS OF AMERICA, INC. No. 2,686. Decided May 25, 1931 412 O. G. 278; 49 F. (2d) 846 TRADE-MARK-SIMILARITY-" PERMANIZE" AND "SIMONIZ." The term "Permanize" used upon an automobile cleaner Held confusingly similar to the term "Simoniz" as used upon the same goods. APPEAL from the Patent Office. Reversed. Mr. John T. Evans, Mr. Edward S. Rogers, Mr. Allen M. Reed, and Mr. Thomas L. Mead, Jr., for The Simoniz Co. No appearance for Permanizing Stations of America, Inc. HATFIELD, J.: This is an appeal in a trade-mark opposition proceeding from the decision of the Commissioner of Patents affirming the decision of the Examiner of Interferences dismissing the opposition of appellant and holding that appellee was entitled to the registration of the trademark "Permanize for use on "Cleaner for automobile bodies, painted, varnished, and other surfaces." In its application for registration, filed August 13, 1928, appellee alleged that it had used its trade-mark since December 1, 1926. It appears from the record that appellant is the owner of trademark registration No. 137,701, issued to the Simons Manufacturing Company, November 30, 1920, of the word "Simoniz" for use on a compound in the form of paste for cleaning and polishing automobile bodies, furniture, and the like; that appellant and its predecessor have used the registered trade-mark continuously throughout the United States and in foreign countries since 1918; that appellant has expended large sums of money in advertising its product and its trade-mark; and that appellant's product is put up in cans and is sold to garages, jobbers, authorized "simonizing stations," and in stores to the general public. " It further appears from the record that appellee's product consists of a cleaner in paste form, sold in "pint cans," and a "preserver a polish-in liquid form, sold in quart cans; that appellee's product is sold to garages-authorized "permanizing" stations; and that the products of the respective parties are used in a similar manner and for the same purposes. There is some evidence in the record to the effect that confusion has existed due to the similarity of the marks, and that appellee's goods were being sold in "authorized simonizing stations." It is not argued here that the goods of the parties do not possess the same descriptive properties, nor that appellant is not the prior user of the trade-mark "Simoniz" for use on its goods. Therefore, the sole question before us is, are the marks confusingly similar. The tribunals of the Patent Office held that the marks did not look alike, sound alike, nor convey the same thought. They referred, in their opinions, to the registered trade-mark" Kyanize" for use on paints and painters' materials, registered February 5, 1907, and held that there was closer similarity between the marks Simoniz" and "Kyanize" than existed between the marks "Simoniz " and "Permanize." are It may be that the trade-marks "Kyanize" and "Simoniz" confusingly similar, and that appellant was not entitled to the registration of its mark. However, that question is not before us and will not be considered by this court in this proceeding. Van Camp Sea Food Company, Inc. v. Westgate Sea Products, 18 C. C. P. A. (Patents) 1311, 48 F. (2d) 950, and cases therein cited. It appears from the record that appellee was familiar with the trade-mark" Simoniz" at the time it adopted and began the use of the word "Permanize" as its trade-mark. Nevertheless, it selected a trade-mark closely simulating appellant's trade-mark which had been advertised throughout the United States and abroad, and which due to the popularity of appellant's goods, was a valuable asset. The marks are not identical, but the only material difference is in the first syllables-"Si" and "Per." However, this court has repeatedly held that the public ought not to be required to dissect and analyze trade-marks in order that confusion and deception might be avoided. We are of opinion that the involved marks are confusingly similar, and that appellee is not entitled to have its mark registered. The decision is reversed. Reversed. [U. S. Court of Customs and Patent Appeals] IN RE EGLER No. 2,725. Decided May 25, 1931 412 O. G. 279; 49 F. (2d) 837 PATENTABILITY-OPEN-HEARTH FURNACE. Claims for an open-hearth furnace Held unpatentable over the prior art. APPEAL from the Patent Office. Affirmed. Messrs. Blount & Helbert, Mr. George K. Helbert, and Mr. Frederick A. Blount for Egler. Mr. T. A. Hostetler and Mr. Howard S. Miller for the Commissioner of Patents. HATFIELD, J.: This is an appeal from the decision of the Board of Appeals of the United States Patent Office affirming the decision of the Primary Examiner rejecting claims 1, 2, 3, and 5 to 9, inclusive, in appellant's application for a patent for an alleged invention relating to improvements in the construction of walls for open-hearth furnaces. Claim 8 is illustrative and fully describes appellant's alleged invention. It reads: 8. In an open hearth furnace having a hearth of normal width, a wall having a vertical lower portion extending to the vicinity of the slag line, an outwardly and upwardly inclined portion extending from the upper end of said vertical portion to a point above the slag line and a vertical portion above said inclined portion extending to the roof, and furnace lining material covering said inclined portion and extending partially up the face of the superadjacent vertical portion of the wall. The references are Isles, 1,495,519, May 27, 1924; Naismith, 1,563,038, Nov. 24, 1925. The Primary Examiner described the references as follows: Naismith shows the side wall resting at its lower end upon the side wall of the vertical hearth wall and sloping outwardly and upwardly to the outer edge of the roof and the angle is stated to be not materially less than the angle of repose of the lining material, see page 2, lines 19 and 20 of the specification. Isles, in Fig. 4 shows a sloping hearth wall with a vertical side wall 3 displaced outwardly from the inner face of the top or the hearth wall with refractory material piled upon the sloping hearth wall and against the vertical side wall. The Primary Examiner held, in substance, that appellant had merely modified the structures shown in the references without producing an unobviously new result. The Board of Appeals held that appellant's structure was not substantially different from the Naismith disclosure, and, after stating that it was customary in open-hearth furnaces to line the bottom part of the walls with loose refractory material, that the walls in the Isles reference extended considerably above the refractory material, and that it had been found in practice that the exposed walls were injured by the heat, necessitating rebuilding of the furnaces, pointed out that the walls of appellant's furnace were protected by extending the loose material to a higher point. Thereupon the Board said: Appellant contends that he discovered that it was unnecessary to protect the side walls entirely to the roof and that he designed a furnace which is much superior to that of Naismith. He urges that the space at the sides of the Naismith furnace beyond the metal bath is greater than in his construction, thereby increasing the amount of air and gas necessary. Also, he contends that it is necessary to construct furnaces of the Naismith type larger in order to accommodate the same amount of material being treated and that the roof construction of Naismith is weaker. He points out that the overhang as shown at 64 of Naismith gets in the way of operatives and is objectionable. We have considered these points carefully but in our opinion there is substantially little difference in the capacity of the two furnaces or in the amount of gas and air necessary for operation. If appellant should continue the inner slope of the wall 16 upwardly somewhat in a curve as shown on the inner face of the wall 66 of Naismith and then continue the bank of loose material to the roof, it is believed there would be no substantial difference in the amount of gas and air required in these structures. While it might be necessary to extend the roof slightly it is not believed that the difference would be material. As far as the overhang at 84 of Naismith is concerned there is no reason why the projecting horizontal portion can not be inclined, if it is found that it interferes with the operatives, without modifying the internal construction of the furnace. It seems clear to us that Naismith recognized that it was unnecessary to supply the same amount of protection to the upper portion of the walls as to the lower and for this reason the layer of loose material is shown much thinner there, as previously stated. It is contended by counsel for appellant that appellant has devised a furnace structure of longer life than that disclosed by Isles without loss of any of the advantages obtained therefrom; and that appellant's structure is as durable as the Naismith disclosure, and has the following important advantages, whereby steel may be produced at less cost; it requires less floor space, the cost of construction is less, and, the "volumetric capacity "being less, the heating gases are more closely confined and are utilized more efficiently, thereby reducing the amount of air and fuel required to heat a charge of given tonnage capacity. It is further argued by counsel for appellant that appellant has produced a novel and unobvious combination; that it produces new and useful results; and that appellant is entitled to a patent. It is conceded by the Solicitor for the Patent Office that appellant's structure is novel. It is argued, however, that it was uninventive to make the upper part of the walls in the Naismith reference vertical instead of outwardly flaring in view of the fact that the patent to Isles shows exactly that very thing, and that, although appellant may have produced a better furnace than either of those disclosed in the references, the combining of the old elements and the results obtained therefrom were obvious to one skilled in the art. Although we are unable to agree with that part of the Board's decision in which it is held that the volumetric capacity in the Naismith reference is not substantially greater and that it will not require substantially more fuel in operation than appellant's structure, we are in accord with the decision of the tribunals of the Patent Office in holding that, in view of the patent to Isles, it would not involve invention to modify the Naismith disclosure by changing the outwardly sloping walls at a point above the slag line to vertical walls and extending them to the roof. The Isles reference clearly suggests such a structure. For the reasons stated, the decision is affirmed. [U. S. Court of Customs and Patent Appeals] MONTGOMERY WARD & COMPANY, INC., v. SEARS, ROEBUCK No. 2,703. Decided May 25, 1931 412 O. G. 280; 49 F. (2d) 842 1. TRADE-MARKS-OWNERSHIP-INTRASTATE USE. The intrastate sales of goods bearing a trade-mark Held sufficient to vest title in the appellee and give it ownership of the mark although registration could not be predicated upon this alone. In order to be entitled to register, the owner of a mark must have used the mark in interstate commerce. 2. SAME PRIORITY-RIGHT OF REGISTRATION. Evidence reviewed and Held to establish use by the appellee of the term "Sta-Klean" as a trade-mark for explosives, firearms, etc., prior to any use established by the appellant of the term "Staclean upon the same goods and further Held that appellee having used the mark in interstate commerce is entitled to the registration for which it made application. APPEAL from the Patent Office. Affirmed. Mr. Wm. Nevarre Cromwell, Mr. Earle D. Crammond, Mr. Charles B. Fullerton, and Mr. James L. McManus for Montgomery Ward & Company, Inc. Mr. C. Paul Parker for Sears, Roebuck & Co. GARRETT, J.: This is a trade-mark registration interference proceeding in which Montgomery Ward & Company, Incorporated, has appealed from a decision of the Commissioner of Patents, affirming a decision of the Examiner of Interferences awarding to Sears, Roebuck & Company priority of use and right of registration of the word "Sta-Klean for use on ammunition in Patent Office class 9, explosives, firearms, equipments, and projectiles, and denying to appellant right of registration of the word "Staclean " for use on the same type of goods. The goods upon which the respective parties are using, and propose to use, the respective marks are identical in character. The words are the same, except that appellee hyphenates its word and uses the capital letter "K" where appellant uses the small letter "c" in spelling "clean." Appellee also makes a somewhat fanciful arrangement of its word, while appellant uses plain letters, but this difference is not urged as having any bearing upon the issue. So the question in the case is that of which party first used the mark in the sense of the Trade-Mark Registration Act of February 20, 1905. The application of appellee for registration was filed in the Patent Office September 14, 1927, and alleged continuous use "since June 28, 1927." Appellant filed its application December 10, 1927, alleging use "since May 11, 1927." The interference was declared January 13, 1928, and on April 18, 1928, appellee moved to amend by substituting March 2, 1927, for June 28, 1927, as its date of beginning use. Consideration of this motion was postponed by the Examiner of Interferences" until after the termination of this interference.' We do not find in the subsequent decisions where either tribunal of the Patent Office formally passed upon the motion, but it seems to have been treated as granted, and, in the argument before us, appellant agrees that it should be so treated. It is the contention of appellant, however, that upon the fact of the sale, claimed by appellee to have been made on March 2, 1927, the evidence is conflicting as to some details and does not satisfactorily establish such a sale of goods bearing the mark as to give appellee ownership thereof in the sense of the trade mark registration law. Upon the fact of the sale, we have the concurring findings of both tribunals of the Patent Office, and the rule that this court will not disturb such findings unless convinced by the evidence that they are manifestly wrong, is applicable. |