Continental Varnish Co. v. Alabastine Co.

ROBB, Associate Justice. Appeal from a decision of the Patent Office in a trademark opposition proceeding denying appellant’s application for the registration of the word “Opaline” as a trade-mark “for varnishes and finishes in the nature of a paint,” on the ground that the word is descriptive. The opposer applies the same mark on mixed paints which the tribunals of the Patent Office have found, and in that finding we concur, may be and have been used for substantially the same purpose as appellant’s product.” Opposer, therefore, is in a position to object to the registration of this word. The Standard Dictionary defines “opaline” as “pertaining to or possessing the qualities of the opal; * * * possessing the milky iridescence of the opal; opalescent.” The following illustrative quotation is then given: “Sea and sky and meadow were taking a hundred opaline tints from the reflection of the sunset. Prudence Palfrey Aldrich, p. 212” (1874). Under section 5 of the Trade-Mark Act of 1905 (33 Stat. 724 [Comp. St. § 9490]), no mark is registerable, consisting “merely in words or devices which are descriptive of the goods with which they are used, or of the character or quality of such goods.” As we many times have ruled, the obvious purpose of this provision is to prevent a monopoly of words either aptly descriptive or aptly suggestive of the character or quality of the goods to which they are to be applied. Here there can be no doubt that, to the general public, the use of the word “Opaline,” as applied to “varnishes and finishes in the nature of a paint,” would signify the character or quality of such goods, and hence that the word is not registerable. The decision is affirmed. Affirmed.