Res judicata issue; Hardigg not permitted to reopen question of confusing similarity by changing its identification of goods
How later courts described this case
- Res judicata issue; Hardigg not permitted to reopen question of confusing similarity by changing its identification of goods
Written by the judges who cited it.
The opinion
BALDWIN, Judge,
dissenting.
I believe the board correctly denied the motion for summary judgment. This case *793 involves a material question of fact, namely, whether the clause “for bumpers and packaging applications” actually limits the class of goods described by the appellee’s second application. See In re E. I. duPont de Nemours, 476 F.2d 1357, 1361 , 177 USPQ 563, 567 (Cust. & Pat.App.1973). 1 This question of fact is clearly in dispute, as pointed out in Appellee’s Opposition of May 30, 1975 (R. 165). Even if the parties agree on the abstract meaning of words, that does not settle the nature of objects described by those words. A genuine issue as to any material fact is not properly resolved by summary judgment. Best Lock Corp. v. Schlage Lock Co., 413 F.2d 1195 , 56 CCPA 1472 (1969). The board used another basis for their denial of summary judgment, but we are not limited to review of that basis. See Ilco Corp. v. Ideal Security Hardware Corp., 527 F.2d 1221 , 188 USPQ 485 (Cust. & Pat.App.1976).
I also disagree with the majority opinion’s discussion of the “could have been raised” portion of res judicata. At the outset, the discussion is unnecessary. Furthermore, this portion of the doctrine has logical basis only in normal litigation wherein alternative pleading is allowed. The majority opinion could be misconstrued (assuming the result was not intended) to bar a party who has failed to obtain publication for opposition of a trademark application containing an overbroad description from prosecuting a new application containing a proper description. The bar would arise because the applicant could have abandoned his original, good faith description and substituted the proper one. A trademark applicant is allowed to adjudicate only one description per application and, I believe, the applicant has a right to have that description adjudicated without prejudice to narrower descriptions. I do not believe that the chilling effect of broad language is sufficiently attenuated by qualifying remarks indicating that the language is limited to the facts of the case.
. DuPont clearly characterizes the nature of the goods described in an application as a fact.