203 F2d 767 Application of Diamond Fertilizer Co

203 F.2d 767

Application of DIAMOND FERTILIZER CO.

Patent Appeals No. 5949.

United States Court of Customs and Patent Appeals.

April 15, 1953.

Slough & Slough, Cleveland, Ohio (J. Helen Slough, Cleveland, Ohio, of counsel), for appellant.

E. L. Reynolds, Washington, D. C., for Commissioner of Patents.

Before GARRETT, Chief Judge, and O'CONNELL, JOHNSON, WORLEY, and COLE, Judges.

O'CONNELL, Judge.

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1

This is an appeal from the decision of the Commissioner of Patents affirming the decision of the Examiner of Trade-Marks denying appellant's application for registration on the Principal Register under the Act of 1946, 15 U.S.C.A. § 1051 et seq., of the mark "EZ FLO" for use on insecticides (dusts), plant and horticultural parasiticides, agricultural, crop and animal sprays, fungicides, and plant hormones for agricultural use.

2

The sole rejection advanced by the examiner and approved by the commissioner is that the mark as a whole is descriptive within the purview of section 2(e) of the character or quality of the goods with which it is used,1 because the letters "EZ" together with the misspelled word "Flo," are merely the phonetic equivalent of the words "Easy Flow." 91 U.S.P.Q. 343.

3

The Solicitor for the Patent Office in support of the decision appealed from properly urges that the involved dust is one which is sprayed; that the passage of dust through a spraying device, either in a solution of liquid or entrained in a gas, such as air, would ordinarily be described as a flow; and that the only reasonable impression which could be derived from the words "Easy Flow" when applied to material designed to be sprayed, is that such material would flow easily, uniformly, and without clogging the spraying device.2

4

Appellant's contention that the words which constitute its mark are not descriptive but merely suggestive of the desirable character or quality of the goods with which the mark is used cannot therefore be sustained.

5

For the reasons stated, the decision of the Commissioner of Patents is affirmed.

6

Affirmed.

Notes:

1. Citing, Ex parte Jeffrey Mfg. Co., 60 U.S.P.Q. 382; Ex parte Welch, 64 U.S. P.Q. 310.

2. Citing, Webster's New International Dictionary, Second Edition; Beckwith's Estate, v. Com'r of Patents, 252 U.S. 538, 40 S.Ct. 414, 64 L.Ed. 705; Andrew J. McPartland, Inc. v. Montgomery Ward & Co., Inc., 164 F.2d 603, 35 C.C.P.A., Patents, 802; certiorari denied, 333 U.S. 875, 68 S.Ct. 904, 92 L.Ed. 1151; In re Swan & Finch Co., 49 App.D.C. 95, 259 F. 991. See also Celanese Corporation of America v. E. I. DuPont de Nemours & Co., 154 F.2d 146, 33 C.C.P.A., Patents, 948.