The opinion
KIRKPATRICK, Judge
(dissenting).
I think that the “label” 1 which is the subject of this appeal is not a trademark and, therefore, I am compelled to dissent from the majority view which would entitle it to registration. What the applicant seeks to register is the entire appearance of its package (with the exception of the top and bottom of the can which are rarely seen when the cans are stacked for display purposes and which may be disregarded) — in effect, the dress of the goods.
A clear distinction must be borne in mind between that which enables a customer to recognize goods and that which a customer regards as the identifying mark placed upon goods to indicate their source. 2 The former is not a trademark, the latter is. A trademark is the device or symbol to which the customer looks to authenticate the source of the goods. 3 The customer may be familiar enough with the appearance of the package to be satisfied that it contains the kind of product that he wants to buy, and he may even associate it with the source of the product, but the trademark is what he will look for if he wants to make sure that the product comes from the source which he has in mind and in which he has confidence. In the present case I do not believe that a purchaser will ordinarily accept the red, white and blue bands and ovals as equivalent to the signature of the Standard Oil Company in the ovals, which is what constitutes the trademark.
I see no reason to disagree with the statement of the majority that the “mark” sought to be registered may be characterized as background display. However, it makes little difference whether the marking on the label be called background display or dress of the goods, or, as the examiner described it, a mere “color scheme used by applicant as a carrying device to display the wording.” Whichever it is, it is not a trademark. For a design or, for that matter, for any device or mark to be a trademark, it must not only have been adopted with the intention of making it an indication of origin, but it must be recognized by the purchasing public as such.
In In re Burgess Battery Co., 112 F.2d 820 , 27 C.C.P.A. 1297 , this court held' that a design for a label consisting merely of black and white alternating stripes was mere dress and not registrable, although it gave the package “a distinctive external appearance to appellant’s goods; that it is such distinctive appearance which is recognized by ‘some’ of the-purchasing public as indicating appellant’s goods.” This statement is directly applicable to the situation presented by-the present case, it being noted that in. each case evidence (consisting in the one-case of affidavits and in the other of an ex parte survey) was offered to show that, *500 the applicant’s design had acquired a secondary meaning. 4
I think that the Burgess Battery case, supra, is still law for this court and that it was not overruled by In re Swift & Co., 223 F.2d 950 , 42 C.C.P.A. 1048 , (a case which, it is sometimes argued, overruled it). In the Swift case, the court went to some pains to distinguish the case before it from the earlier case, saying, “The Burgess Battery case, supra, stands for the proposition that that which is only the attractive dress of an article, although it be distinctive in its appearance and sometimes recognized by purchasers as an indication of origin, does not have, as its primary function, an origin-authenticating purpose, and is hence not a trade-mark entitled to federal registration under the statute.” I see no distinction between the Burgess Battery case and the present one, but I can see a possible distinction between those cases and the Swift case in that the label in the last named, with its polka dot pattern, is a decidedly more distinctive design than either of the others. 5
I do not think that the enactment of the Lanham Act after the Burgess Battery case, but before the Swift case, had anything to do with the latter decision. Although the Lanham Act does not spell out in its definition of the term “trademark”, found in Section 45, a requirement that the symbol or device must be such as will be recognized by the purchasing public as a trademark, it is obviously not the intention of the Lanham Act to eliminate such fundamental requirement for trademark significance. The statutory definition, in requiring that the mark be adopted and used by a manufacturer or merchant to identify and to distinguish his goods from others, most certainly was referring to their identification and distinction in the marketplace by the purchaser, and this could occur only if the purchasing public accepted the mark as an authentication. Certainly the manufacturer does not adopt a mark for the purpose of enabling himself only to identify and distinguish his own goods.
The Lanham Act never intended such a drastic and sweeping change in the law of trademarks as would be caused by the view that acceptance as a trademark by the public is unnecessary. The case of Burgess Battery Co. v. Marzall, D.C., 101 F.Supp. 812 , was decided after the adoption of the Lanham Act, a fact which the court pointed out, saying, “Because the 1946 Act did not give a new meaning to a trade-mark, the design cannot be considered a trade-mark now * *
The trademark now before the court consists merely of bands of color running around the can with two empty ovals superimposed upon them, the latter being obviously intended as frames for the real trademark, the autograph of the applicant, which in practice always appears upon them, but for which registration is not being asked. I think that the applicant’s color scheme “does not have, as its primary function, an origin-authenticating purpose” (Swift), that its “office * * * is not to point out distinctly the origin or ownership of the articles to which the label is affixed” (Burgess), and that the purchasing public would not accept it as such. Hence, it is not a trademark.
I would affirm the board’s decision.
. Although called a “label” throughout the entire record, the design, in practice, is not attached to the cans but is painted on them and, hence, not, in the dictionary sense, a label.
. It is plain that the distinction between recognition and authentication was in the minds of the legislators when they passed the Lanham Act, since in Section 23 it provided for the registration on the supplemental register of labels, packages and configurations of goods. Registration of such material does not appear in any provision relating to the principal register.
. Trademark significance will be assumed provided the mark is not only inherently distinctive but also of such a. character that purchasers would take it to be intended as the trademark of the goods and not as mere dress. This rule is modified by the rule of secondary meaning where, though a word or design might not in itself have trademark significance, it is shown by evidence to have been; accepted as a trademark by the public..
. The board held that the poll was “not persuasive that the purchasing public in general associates the label design sought to be registered with applicant as an identifying and distinguishing symbol,” a conclusion with which I fully agree. I think it should be recognized that a survey or poll conducted ex parte by an interested party, with no possibility of checking by means of cross examination or otherwise, is the weakest sort of evidence.
. Whether, in view of the fact that the court recognized the Burgess design as being distinctive, the cases are really distinguishable on this basis, is not easy to say, but, at any rate, it is plain from reading the Swift opinion that the court did not intend to overrule the Burgess Battery case and did not think that it was doing so.