Gerstendorfer Bros. v. United Supply Co.

VAN ORSDEL, Associate Justice. Appellant, Gerstendorfer Bros., appeals from the decision of the Commissioner of Patents dismissing their petition for the cancellation of two registered trade-marks owned by appellee company. One mark, registered in 1913, consists of the word “Samoline”; and the other mark, registered in 1925, consists of a figure of a boy of the “Jackie Coogan” type, attired in a dress suit, and designated as “Little Sammy Samoline,” associated with the word “Samoline.” These marks are used as trade-marks for a cleaning material for wood, metal, and other objects. Appellant petitioner’s mark consists of the word “Sapoiin,” and is used as a trademark for paints, enamels, varnishes, laquers, wood stains, and furniture polish. The petition is grounded upon the similarity of the marks and their use upon goods of the same descriptive properties to an extent that would be likely to cause confusion in trade. It was held by the tribunals below that the goods are not of the same descriptive properties, and that therefore there can be no likelihood of confusion. If the marks were exactly similar, this contention might have more force, but when we consider the dissimilarity of the marks and the dissimilarity of the use to which the goods are appropriated, we are of opinion that the likelihood of confusion is quite remote. Considering the doubt thus raised in connection with the fact that the trade-mark “Samoline” has been appropriated and used on the goods produced by appellee company for more than fifteen years, and that no objection was interposed by the petitioner company, we agree with the holding of the Commissioner that “under these circumstances this Office would not be justified in disturbing in any way at this time the registrant’s rights respecting its trade-marks. If the petitioners ever had any right to oppose the right of the registrant to register its marks, such right of the petitioners has been lost by laches. France Milling Co. v. Washburn-Crosby Co. (C. C. A.) 7 F.(2d) 304; [565] White Rock Co. v. Akron Co. (C. C. A.) 299 F. 775; Rectanus Co. v. United Drug Co. (C. C. A.) 226 F. 554.” The decision of the Commissioner is affirmed.