Hump Hairpin Co. v. De Long Hook & Eye Co.

Citations

• 39 App. D.C. 484
• 1913 U.S. App. LEXIS 2020

Syllabus

<p>Experts; Trademarks; Opposition to Registration; Prior Use; Descriptive Properties; Trademark Use; Appeal and Error.</p> <p>1. In a trademark opposition case involving tbe question whether the goods of the parties are of the same descriptive properties, while witnesses familiar with the articles of merchandise may give evidence of facts, within their knowledge, of the construction and uses of the articles, from which conclusions may be deduced, their opinions and conclusions are- not entitled to any particular weight,—especially if there is direct conflict between them.</p> <p>2. Registration of a trademark for hairpins containing the word “Hump” is improperly denied by the Commissioners of Patents, although it appears that the opposer in the opposition has adopted and made prior use of the same word as a trademark for hooks and eyes, since the goods of the applicant and the opposer are not of the same descriptive properties.</p> <p>3. Articles of merchandise may be said to be of the same descriptive properties, within the meaning of the trademark act, when their general and essential characteristics are of such a sameness that the use of a similar trademark will be likely to mislead the general public. (Citing American, Stove Go. v. Detroit Stove Works, 31 App. D. C. 304; Walter Baker & Go. v. Harrison, 32 App. D. C. 272; Phcenia Paint & Tarnish Go. v. John T. Lewis & Go. 32. App. D. C. 285; Múralo Go. v. National Lead Go. 36 App. D. C. 541; and Johnson Educator Food Go. v. Sylvanms Smith & Go. 37 App. D. C. 1077.</p> <p>4. Merely including an article of merchandise in a comprehensive class in the Patent Office does not of itself make it of the same descriptive properties of another included in the same class, within the meaning of the trademark act.</p> <p>5. Property in a trademark—without which there can be no legal registration—is acquired not by the invention or discovery of a word or symbol, or by advertisement, but only by attaching or affixing it to the