National Cash Register Co. v. National Paper Products Co.

ROBB, Associate Justice. Appeal from a Patent Office decision, in a trade-mark opposition proceeding, dismissing the opposition. The appellant, the National Cash Register Company, long prior to the adoption by appellee of the distinctively printed word “National” as a trade-mark, sold its cash registers and paper rolls for use therewith under its corporate name. In its application appellee confined its [352] use of its mark to “toilet paper, paper towels, paper roll towels, and serpentine, a narrow ribbon of paper.” It is not contended that confusion would result, unless from use of the mark on the last-named product. The treasurer of the appellee company, produced as a witness for appellee, testified as follows: “Q. Are you familiar with, the kind of paper which is used'in these registers for recording transactions? A. Yes. “Q. Does your company make any paper of that type, or sell any paper of that type? A. It does not. “Q. In your opinion, would it be possible to use any of the paper rolls which your company makes or sells in a cash register? A.. No; they could not be used in a cash register. * * * “Q. In jour application for registration of this trade-mark, among the-goods enumerated is serpentine. Will you please tell us what the nature and purpose of said serpentine are? A. Serpentine consists of small rolls of various colored paper used in carnivals and other celebrations for their decorative effects. “Q. Is such serpentine ever put to any practical use? A. None whatever.” In the argument of the case in this court it was conceded by appellee’s counsel that the paper designated as “serpentine” is not capable of being put to any practical use; that, by reason of the process to which it has been subjected, it assumes a spiral or serpentine form when unwrapped. It is apparent, in view of this testimony and concession, that appellee’s'claim to the use of this mark is restricted to a product that in no way can conflict with appellant’s use. See National Cigar Stands Co. v. Frishmuth Bro. & Co.,-App. D. C.-, 297 Fed. 348 present term. The decision therefore is affirmed. Affirmed.