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ROSELUX CHEMICAL CO. v. PARSONS AMMONIA COMPANY
299 F.2d 855 (1962)
ROSELUX CHEMICAL CO., Inc., Bonnie-Lan, Inc., and Proxite Products, Inc., Appellants,
v.
PARSONS AMMONIA COMPANY, Inc., Appellee.
Patent Appeal No. 6715.
United States Court of Customs and Patent Appeals.
March 9, 1962.
Amster & Levy, Edward F. Levy, and S. Stephen Baker, New York City, for appellants.
George B. Finnegan, Jr., New York City (John R. Murtha, Hamden, Conn., of counsel), for appellee.
Before WORLEY, Chief Judge, and RICH, MARTIN, and SMITH, Judges, and Judge WILLIAM H. KIRKPATRICK.*
RICH, Judge. Registration of "sudsy" is opposed. Opposers are appealing from the decision of the Patent Office Trademark Trial and Appeal Board (124 USPQ 524) dismissing three consolidated oppositions, Nos. 37,969, 37,975, and 37,976, all opposing the issuance of a Principal Register registration on appellee's application Ser. No. 38,558, filed October 8, 1957, of "sudsy" as a trademark for "aqueous ammonium hydroxide composition," as the goods are described in the application. Comprehension of the issues in this case requires a more accurate understanding of what the goods are. To that end we set forth some background. Appellee, Parsons Ammonia Company, Inc. (hereinafter called "Parsons"), is the direct successor in business to one C. C. (Charles Chauncy) Parsons who, in 1876, introduced ammonia water, otherwise known as aqua ammonia, to the American housewife. Ammonia, in the technical sense, is a gas (NH3) which is very soluble in water and when dissolved therein it forms, in part, ammonium hydroxide (NH4OH), this solution being sometimes known loosely simply as "ammonia." According to "Chemicals of Commerce," by Foster Dee Snell and Cornelia T. Snell (1939), "In a somewhat modified form, usually containing a small amount of soap, it is sold as household ammonia." However, the record herein indicates "Household Ammonia" to be a registered Parsons trademark and the name under which C. C. Parsons introduced his product, which was aqua ammonia containing a small amount of vegetable oil, or possibly soap, the effect of which was to produce a cloudy appearance,1 wherefore his product became widely and descriptively known as "cloudy ammonia."2 This product, under the label "C. C. Parsons' Household Ammonia", continued substantially unchanged until 1948. The application on appeal relies on section 2(f) of the Lanham Act (15 U.S.C. § 1052(f), 15 U.S.C.A. § 1052(f) ) and states: "The mark has become distinctive of applicant's goods as evidenced by the showing submitted separately." That showing consists of an affidavit of Parsons' president, Philip C. Ingham,
who, before becoming president in 1955, had been with the company since 1938 as salesman, sales manager and vice president. To his affidavit there are attached numerous exhibits. One of them is a book published in 1951 on the 75th anniversary of Parsons' single product, "Household Ammonia." After reciting how the company and its product had weathered World War I, the Great Depression, and World War II, it says: "The war over, the business continuously increased. But the world was changed and full of new ideas. The magic of modern chemistry had produced a host of synthetic detergents that were different and interesting. None of them appeared to take the place of ammonia as a cleanser, but they did have certain quite remarkable properties.
* United States Senior District Judge for the Eastern District of Pennsylvania, designated to participate in place of Judge O'CONNELL, pursuant to provisions of Section 294(d), Title 28 United States Code. 1. The record leaves it a little vague as to just what is used to make cloudy ammonia cloudy. Parsons' president testified: "The old product was nothing more than really gassed water, which is the average ammonia today in the cheap field. They put a certain degree of ammonia in water, probably mix a little oil or soft soaps to form a cloud. Clouds in ammonia have no cleaning ability whatsoever." And again, "Well, it was to a high degree, as I say, gassed water. Q76. Was there anything else in it? A. Just a little — we used to use a white oil or a red oil to form the cloud." Parsons' sales manager testified: "Your old style cloudy ammonia was formulated with a soap compound in it." 2. The market significance of the cloudy appearance of Parsons' original product is made clear by the following which appeared on the label used in 1881, as shown in the 75th anniversary booklet hereinafter referred to: "Clear ammonia irritates the skin and discolors white fabrics. Household ammonia is clear ammonia combined with substances which give a cloudy appearance and prevent all injurious action." 3. Beyond showing that the new product is a composition containing aqua ammonia and a synthetic detergent and probably other ingredients to make blending possible and prevent precipitation on standing, the record does not disclose just what the composition is. The record indicates that Parsons obtained a patent on it on May 29, 1951, on application Ser. No. 6351, but the patent is not of record nor is its number disclosed. 4. Technically, both common soap, apparently used to cloud ammonia in some instances, and aqua ammonia itself are "detergents," which word is defined in Webster's New Collegiate Dictionary as meaning: "A cleansing agent, as water, soap, or a soluble or liquid preparation (`soapless soap'), usually synthetic, that resembles soap in the ability to emulsify oils and hold dirt in suspension." The term "detergent" as used by the parties herein is in the "soapless soap" synthetic sense, though Parsons' witnesses pointed out that ammonia is a detergent too. We do not believe many consumers would know that but would think of detergent ammonia as aqua ammonia containing one of the many now popular synthetic liquid detergents commonly sold for household washing and cleaning uses.
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