This is an appeal taken pursuant to the provisions of the Act of July 5, 1946, 15 U.S.C.A. § 1051 et seq., from the decision of the Examiner-In-Chief of the Board of Appeals of the United States Patent Office who, substituting for the Commissioner of Patents by the delegation of his duties respecting trade-mark appeals and the determination thereof,
The affirmance of the examiner's decision was based on the conclusion expressed in the following decision of the Examiner-In-Chief: "The words `Fruit Products,' which appear in the [prior] registration, are written in small letters and constitute merely a broad description of the goods, and hence the word `Oregon' is the dominant part of the registered mark. The applicant's mark `Oregon's Finest' applied to canned and frozen vegetables is considered to be confusingly similar to the mark of the prior registration applied to the closely related goods, canned fruits, fruit preserves and fruit jams, notwithstanding the presence of the words `Fruit Products.'"
The owner of a trade-mark used in commerce may register his mark on the principal register established by section 1 of the Act of 1946, or he may register his mark on the supplemental register, established by section 23 of the same act and kept by the commissioner in continuation of the register provided in section 1, paragraph (b), of the Act of March 19, 1920, 15 U.S.C. § 121, now 15 U.S.C.A. §§ 1051 note, 1091, 1126.
Section 45 of the Act of 1946, fourth paragraph, officially defines the "principal register" as the register provided by sections 1 through 22 of the Act of 1946 and construes the "supplemental register" to be the register provided by sections 23 through 28 thereof. The principal register established by the provisions of sections 1 through 22 of the new act, just described, is, in general, a continuation of the register of marks under the Trade-Mark Act of February 20, 1905, 15 U.S.C. sections 81-120, now 15 U.S.C.A. § 1051 et seq.
Our primary concern in the case at bar relates to the supplemental register and that portion of the first paragraph of section 23 which reads: "* * * All marks capable of distinguishing applicant's goods or services and not registrable on the principal
Those grounds which proscribe the registration of an applicant's mark under paragraphs (a), (b) and (c) of section 2 of the Act are nowise here in issue. The sole question presented involves paragraph (d) of section 2 which, so far as pertinent, provides that no trade-mark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration unless it "(d) Consists of or comprises a mark which so resembles a mark registered in the Patent Office or a mark or trade name previously used in the United States by another and not abandoned, as to be likely, when applied to the goods of the applicant, to cause confusion or mistake or to deceive purchasers * *."
The obvious purpose of the provisions of paragraph (b) of the Act of 1920 was to widen the eligibility of marks for American and foreign users thereof by authorizing, among other things, the registration of wholly descriptive and merely geographical terms and enabling the marks to be registered at home and abroad. Armstrong Paint & Varnish Works v. Nu-Enamel Corp., 305 U.S. 315, 323, 330, 59 S.Ct. 191, 83 L.Ed. 195. The Act of 1946 provides for a continuation of that purpose and procedure and is said to correct many of the deficiencies of the Act of 1920.
The word "Oregon" is geographically descriptive. The additional words which constitute the remainder of the mark relied upon by the tribunals of the Patent Office in rejecting applicant's mark, "Fruit Products," are primarily descriptive of those products. There can be no monopoly or exclusive use of a geographically descriptive or misdescriptive word.
A descriptive term cannot serve as the dominant part of a mark.
The decision of the commissioner is accordingly reversed.