Having continuously since 1919 affixed the word expression "Consistently Superior" to its bakery products (bread, rolls, biscuits, cakes, pies and pastries), Duvernoy & Sons, Inc., the appellant herein, filed its application in 1947 to register that notation as a trade mark on the Principal Register of the United States Patent Office. Registrability of the alleged mark was claimed in accordance
It appears from the record that the notation "Consistently Superior" has been applied to the wrappers encasing the appellant's bakery products for a continuous period in excess of 30 years. Sales of the appellant's goods have been national in scope since 1935; prior thereto, distribution of such goods was on a relatively local basis. Advertising has been extensive and of wide circulation, varying in medium from attractive window displays to order forms, pamphlets, circulars, and magazine spreads. In all of its advertising efforts disclosed by the exhibits in the record the appellant has used the legend in question in close association with its trade name, Duvernoy & Sons, Inc., and in connection with the promotion and distribution of its products. Numerous trucks serve the customers of the appellant throughout the United States (approximately 80 of such trucks presently operate in the New York, New Jersey, and Connecticut areas) and the notation "Consistently Superior" has for many years been printed in a uniform position on the side panels of each of such trucks.
The affidavits of record offered in appellant's behalf conclusively establish that, insofar as the individual affiants are concerned, the term "Consistently Superior" is distinctive of the appellant's goods in commerce and is so recognized by the public and those in the trade. In other words, the affidavits are to the effect that "Consistently Superior" is a mark positively signifying the goods of the appellant and that such notation has become distinctive with respect thereto.
On the basis of the record before us, viewed in the light of the arguments presented and the law applicable thereto, we are of the opinion that "Consistently Superior" is not such a notation as warrants registration under the provisions of section 2(f), supra.
The appellant seemingly concedes that the term in question is, in a sense, laudatory or exclamatory and would require proof of the most convincing character to support a claim to distinctiveness. The affidavits relied upon to establish such distinctiveness, as applied to the appellant's goods, do not, however, sufficiently reflect the views of the purchasing public with respect thereto, being attestations from persons in close association and intimate contact with its business. We are in entire agreement with the Solicitor for the Patent Office in his statement that "such persons would be much more familiar with the words and devices employed by bakers than would members of the general public. It follows that the fact that these experts recognize a connection between the appellant and words `Consistently Superior' is insufficient to establish that the public would recognize such a connection."
Furthermore, we feel manifestly certain from the nature of the notation sought to be registered that it was not originally adopted or intended to function as a trade mark to indicate origin of the appellant's goods, and it does not satisfactorily appear to us from the exhibits in the record that the appellant has ever used the term in question as a primary means for identifying its goods. On the contrary, we think it is clear from the exhibits that Duvernoy & Sons, Inc., appellant's trade name (generally shown in large, fanciful letters), is relied upon to denote origin and that "Consistently Superior" is merely an adjunct thereto, operating in the shadow thereof, to indicate to purchasers that appellant's goods are always superior in quality. In this respect, the solicitor aptly observes:
A careful consideration of the manner in which the appellant has employed the notation in question, as indicated principally by the exhibits, compels us to conclude that actual trade mark usage of "Consistently Superior" is not adequately shown in the record.
We are of the further opinion that the Examiner-in-Chief correctly held that "Consistently Superior" is a laudatory statement incapable of becoming distinctive or distinguishing the appellant's goods. Such a notation is merely a statement of fact which should be available to anyone who feels that his products are, in fact or belief, consistently superior, and wishes to so advise the public.
For the reasons hereinbefore stated, the decision of the Examiner-in-Chief, acting for the Commissioner of Patents, is affirmed.
JACKSON, J., retired, recalled to participate herein in place of GARRETT, C. J.