The opinion
SMITH, Judge
(concurring).
The issue here turns on the legal effect, if any, to be accorded appellant’s alleged right to use the trademark in issue by reason of a “Final Decree by Consent” dated September 19, 1929 in an action 1 in the U. S. District Court for the District of Massachusetts entitled:
THE FRED. GRETSCH MFG. CO., Plaintiff. vs. ARAM ZILDJIAN, ARMAND ZILDJIAN and P. ZILDJIAN, co-partners, doing business under the name of A. ZILDJIAN & CO., Defendants.
Where a right to use a trademark arises from a court decree, that right must be recognized. Alfred Dunhill of London, Inc. v. Dunhill Tailored Clothes, Inc., 293 F.2d 685 , 49 CCPA 730 (1961). However, before a right to use can be predicated on a court decree, it is necessary to show identity of the parties or to establish privity such that the party asserting the right is clearly entitled to exercise the rights granted therein. Appellant’s case fails at this point. I am unwilling to assume that the present record establishes identity of appellant and the defendants named in the decree of September 19, 1929 or any showing of privity between them.
The consent decree to which the majority opinion and Judge Rich’s dissent refer was entered in an action in which the parties defendant were three individuals, “Aram Zildjian, Armand Zildjian and P. Zildjian” designated as “co-partners, doing business under the name of A. Zildjian & Co.” The appellant here is designated in the application as “Avedis Zildjian & Co., a corporation duly organized under the laws of the Commonwealth of Massachusetts.” The declaration accompanying the application is signed by one “Avedis Zildjian” as president of that corporation.
The present factual situation underscores the necessity for requiring proof of identity or privity of the parties when such a “right” is asserted. If we pass this issue, as the majority opinion and *863 the dissent of Judge Rich do, further questions are presented, i. e., what is the extent of the rights granted? And are those rights assignable? It is a novel and unsupportable proposition that such questions affecting “rights” arising from a decree in inter-partes litigation between apparent strangers to this record are determinable on a record made in an ex parte proceeding such as the present in which none of the parties to that decree is present or represented.
I would, therefore, refuse registration of the mark' for the reasons here stated.
. The present appeal appears to be but another skirmish in the protracted litigation involving the name “Zildjian” in connection with trademarks on cymbals. The background and some of the history which underlies the present appeal will be found in the following reported decisions :
Avedis Zildjian Co. v. Fred Gretsch Mfg. Co., 251 F.2d 530 , (2d Cir. 1958), affirming Avedis Zildjian Co. v. Fred Gretsch Mfg. Co., 147 F.Supp. 614 , (E.D.N.Y.1956);
In re Avedis Zildjian Co., 120 USPQ 493 (TTAB 1959);
Ex parte Avedis Zildjian Co., 117 USPQ 301 (Comm.Pat.1958) ;
Ex parte Avedis Zildjian Co., 115 USPQ 98 (Comm.Pat.1957) ;
Avedis Zildjian Co. v. Fred Gretsch Mfg. Co., 97 USPQ 41 (P.O.Exr. in Ch. 1953).