Ansco Photoproducts, Inc. v. Eastman Kodak Co.

MARTIN, Chief Justice. Appeal from a decision overruling an opposition to the registration of a trade-mark. On July 24, 1924, the Eastman Kodak Company applied for the registration of its trade-mark “Speedway” for photographic sensitized material, particularly plates. The application was opposed by the Anseo Photo-products, Inc., because of the alleged similarity of the mark with opposePs trade-mark “Speedex,” which was registered for similar goods on January 18,1916. Opposer claimed that “Speedway” and “Speedex” so nearly resembled one another as to be likely to cause confusion in the public mind, if both were used as trade-marks for the same kind of goods. It appears that the Eastman Kodak Company, since 1908, has used the word “Speed” in a purely descriptive sense, having reference to quick operation and results, for certain of its films, plates, and cameras. Such goods were designed as speed films, speed plates, and speed kodaks, and were so labeled and advertised. Beginning in 1913, opposePs predecessor began the use of the trade-mark “Speed-ex” for its films and cameras, and obtained registration thereof on January 18,1916. In the year 1924 the Eastman Kodak Company adopted the trade-mark “Speedway” as aforesaid, and applied for its registration. The application was met by the present opposition. The opposition has been overruled and dismissed by concurrent decisions in the Patent Office, and we agree with these decisions. The suffixes of the competing marks, to wit, “ex” and “way,” if taken alone, are of course plainly dissimilar. Therefore whatever similarity exists between the two marks must result from the use of the word “Speed” which is the dominating term common to both. That word, however, is descriptive and of common right; and neither party can claim an exclusive right to its use, either alone or as the dominating element of a compound word. Such however, in effect, is the right claimed by the present opposition; it cannot be sustained. S. R. Feil Co. v. John E. Robbins Co. (C. C. A.) 220 F. 650 (“Sal-Vet” and “SalTone”); Sheffield-King Milling Co. v. Theopold-Reid Co., 50 App. D. C. 200, 269 F. 716 (“Jean Baptiste Faribault” and “Faribault Fancy”); Patton Paint Co. v. Sunset Paint Co., 53 App. D. C. 348, 290 F. 323 (“Sun-Glo” and “Sun-Proof”) ; Reo Motor Car Co. v. Traffic Motor Truck Corporation, 55 App. D. C. 227, 4 F.(2d) 303 (“Speedboy” and-“Speed Wagon”); Goodall Worsted Co. v. Palm Knitting Co., 56 App. D. C. 148, 10 F.(2d) 1013 (“Palm-Knit” and “Palm Beach”). See, also, Standard Paint Co. v. Trinidad Asphalt Co., 220 U. S. 446, 31 S. Ct. 456, 55 L. Ed. 536. The decision of the Commissioner of Patents is affirmed.