Gutta-Percha & Rubber Manufacturing Co. v. Ajax Manufacturing Co.

Mr. Chief Justice Smyth

delivered the opinion of the Court:

The notice is not a model of clear and definite pleading. None the less we think it must be sustained as sufficient. It is the rule that, in construing a notice of this character, wo must give to it the meaning most favorable to its author, if it is susceptible of more than one. Kaiserbrauerei Beck & Co. v. S. Liebmann’s Sons Brewing Co. 43 App. D. C. 268. [See also Sage v. Culver, 147 N. Y. 245 , 41 N. E. 513 .] The notice, as we have seen, charges that the Patent Office places automobile and bicycle tires of rubber and fabric in the same class as belting and hose; that the appellant is engaged in producing mechanical rubber goods, which include hose and belting; and that it has been, and is, using the mark in question on those goods.

Automobile and bicycle tires are mechanical rubber goods of the same descriptive qualities as hose and belting. This finds much support in the fact that the Patent Office places them all in the same category. The general and essential characteristics of the goods are alike. No analysis is necessary to disclose this. Furthermore, since automobile and bicycle tires are mechanical rubber goods, appellant’s allegation that it uses its mark on those goods is equivalent to saying that it uses it on such tires. The law denies “registration to trademarks which are identical with a registered or known trademark owned and in use by another, and appropriated to merchandise of the same descriptive properties.” Anglo-AmericanIncandescent Light Co. v. General Electric Co. 43 App. D. C. 385, 386. [See also Walter Baker & Co. v. Harrison, 32 App. *233 D. C. 272; Phoenix Paint & Varnish Co. v. John T. Lewis & Bros. Co. 33 App. D. C. 285.]

Even if we construe the notice narrowly, which we may not do, and say that it does not sufficiently allege the use of the mark by the appellant on automobile and bicycle tires, still the appellant would have a right to oppose the appellee’s use of it on those tires. The first appropriator has not only the right to the use of the mark on goods which he deals in (Menendez v. Holt, 128 U. S. 514 , 32 L. ed. 526, 9 Sup. Ct. Rep. 143), but also on goods which he may afterwards produce or handle if they have the same essential qualities as those upon which he has been using the mark. Appellee has no right to impede the appellant in the use of the mark in the natural expansion of its business. Simplex Electric Heating Co. v. Gold Car Heating & Lighting Co. 43 App. D. C. 28.

Coming to the second ground of the motion, it must also be rejected. An intending purchaser favorably impressed by the goods of the appellant and familiar with its trademark, seeing a similar mark on a tire put out by the appellee, would naturally conclude that the tire was a product of the appellant. Thus he would be led to confuse the goods of the appellant with those of the appellee, from which undoubtedly injury would result to the former.

By failing to file an answer, appellee admitted the allegations of the notice. The decision of the Assistant Commissioner is therefore reversed and the opposition sustained.

Reversed.