276 F2d 415 Squirt Company v. T C Evans
276 F.2d 415
T. C. EVANS (The Sprite Corporation, Assignee, Substituted).
Patent Appeal No. 6530.
United States Court of Customs and Patent Appeals.
March 30, 1960.
Beehler & Shanahan, Los Angeles, Cal. (Edmond F. Shanahan, Los Angeles, Cal., of counsel), for appellant.
Julius R. Lunsford, Jr., Atlanta, Ga., for appellee.
Before WORLEY, Chief Judge, and RICH, MARTIN, and SMITH, Judges, and Judge WILLIAM H. KIRKPATRICK.1
These are consolidated trademark oppositions, Nos. 35,343 and 35,453, wherein appellant appeals from the decision of Examiner-in-Chief Federico, acting for the Commissioner of Patents, affirming the dismissal of the oppositions by the Examiner of Interferences.
Appellee filed application Ser. No. 681,501 February 11, 1955, to register the word mark "sprite" for "nonalcoholic, maltless soft drinks, namely, fruit flavored drinks, root beer and ginger ale." On the same day he filed application Ser. No. 681,502 to register for the same goods the same mark displayed in an oval space on a background of diagonal stripes. The specimens filed with both applications show a soft drink bottle of ordinary shape bearing both marks.
Opposer is the admitted prior user and prior registrant of the trademark "Squirt" for soft drinks which it has registered several different times in different forms. Opposer took testimony from which it appears that "Squirt" is used only on a drink of grapefruit flavor. Opposer also has a registration, No. 401,117, of a caricature of a small boy and has used this mark on its bottles and packages with the word mark. Both the sales of "Squirt" and the advertising expenditures to promote them have been large and the product is presumably widely known to those elements of the population addicted to soft drink.
After carefully considering the record and the arguments of the parties, we are unable to conclude that the concurring decisions below are in error. Having made it clear that we are aware of the extent of opposer's publicity and sales we have nothing further to say in support of our decision that has not already been clearly, competently and completely said in the opinion of the Examiner-in-Chief. That opinion has been published at 119 USPQ 102 and 49 T.M. Rep. 141 and it would serve no purpose to write or publish anything more.
Compare our decision in The Squirt Co. v. Pola-Rona, Inc., 229 F.2d 463, 43 CCPA 764, wherein the dismissal of the present opposer's opposition to the registration of "Splurge" for soft drinks was sustained.
The decision dismissing the oppositions is affirmed.
United States Senior District Judge for the Eastern District of Pennsylvania, designated to participatein place of Judge O'CONNELL, pursuant to provisions of Section 294(d), Title 28, United States Code.