Opinion

Application of Avedis Zildjian Co

  • 394 F.2d 860
  • 55 C.C.P.A. 1126
Court
Court of Customs and Patent Appeals
Filed
May 16, 1968
Status
Published
Author
Rich
On the bench
Worley, Rich, Smith, Almond, Kirkpatrick
Cited by
3 cases
Authority
More cited than 24.8%

The opinion

RICH, Judge

(dissenting).

I disagree with the majority’s suggestion that the public interest demands denial of this registration. It is, I think, a self-evident proposition that confusion, mistake, or deception will not follow the registration of a trademark by its owner. In re National Distillers and Chemical Corp., 297 F.2d 941, 948 , 49 CCPA 854, 862 (1962) (concurring). In this case appellant appears to have an undisputed, judicially sanctioned, right to use “A. Zildjian & Cie” as a trademark. It has become clear to me that in cases of this particular kind, at least, registration should not be denied. Cf. Alfred Dunhill of London, Inc. v. Dunhill Tailored Clothes, Inc., 293 F.2d 685 , 49 CCPA 730 (1961).

Nor is it a forceful rebuttal, in my opinion, to point with uncritical reverence to the literal wording of section 2(d). “A restrictive meaning for what appear to be plain words may be indicated by the Act as a whole, [or] by the persuasive gloss of legislative history * * United States v. Wit-kovich, 353 U.S. 194, 199 , 77 S.Ct. 779, 782 , 1 L.Ed.2d 765 (1957) (Frankfurter, J.). In my concurring opinion in National Distillers, I tried to show that neither a consideration of the Lanham Act as a whole nor an analysis of its legislative history could justify a literal reading of section 2(d). I can only add that the weight of subsequent scholarly comment has been overwhelmingly in favor of conforming the register with the marketplace. See R. Callmann, Trademarks: The Right To Use vs. The Right To Register: The Dunhill Case, 51 T.M.R. 1209 (1961); J. Lunsford, The Right To Use and The Right To Register- — -The Trade-Mark Anomaly, 43 T. M.R. 1 (1953); D. Robert, Commentary on the Lanham Trademark Act, 15 U. S.C.A. at 265, 271-72 (1948); D. Robert, The New Trademark Manual 53, 201 (1947); E. Yandenburgh, Concurrent Registration of Trade-Marks, 29 JPOS 720 (1947); M. Jenney, A Plea for Realism in Trade-Mark Oppositions, 29 JPOS 668 (1947). Where the right to use a trademark is undisputed, I think it should be registered.

I would reverse.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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