# Application of the Realistic Company

> Court of Customs and Patent Appeals · May 13, 1971 · 440 F.2d 1393

URL: https://www.frixlaw.com/law-library/cases/9456765

## Case

- **Full name:** Application of the REALISTIC COMPANY
- **Court:** Court of Customs and Patent Appeals
- **Decided:** May 13, 1971
- **Citations:** 440 F.2d 1393; 58 C.C.P.A. 1204
- **Precedential status:** Published
- **Opinion:** Dissent by Skelton
- **Judges:** Almond, Baldwin, Lane, Rich, Skelton
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9456765

## Opinion text

SKELTON, Judge,
sitting by designation (dissenting).
I respectfully dissent. In my opinion, the examiner’s refusal to register CURV’ as a trademark for permanent wave curling solutions on the ground that the mark is merely descriptive of applicant’s goods within the meaning of Section 2(e) (1) Trademark Act of 1946, 15 U.S.C. § 1052 (e), which was af *1395 firmed by the Trademark Trial and Appeal Board, was correct.
The facts show that appellant advertised its products under the word CURV’ in connection with its permanent wave curling solution. These advertisements emphasized that appellant’s products produced permanent curves, such as, for example:
Only Realistic provides you with four permanent curve formulations, “permanent curve formulations,” “permanent curves for normal hair, for bleached hair,” and “permanent curves for dry, dull hair.”
Furthermore, it appears from the record that appellant's competitors used the words “curve” and “curly” in advertising hair styles created by them for their customers by using permanent wave solutions. In view of these facts, the examiner properly concluded that customers who wished to have a hair style permanent with curves or curls might well ask for a “CURVE” permanent.
The Board correctly stated:
It is well settled that a mark is descriptive not only if it describes the qualities, characteristics or properties of a product but also if it describes the purpose for which it is intended. See In re General Permanent Wave Corporation, 49 USPQ 184 [28 CCPA 1099, 118 F.2d 1020 ]; In re W. A. Sheaffer Pen Company, 72 USPQ 129 [34 CCPA 771, 158 F.2d 390 (CCPA 1946)]; and The Firestone Tire and Rubber Company v. United States Rubber Products, Inc., 51 USPQ 58 (Comr.1941). In view thereof, and since applicant’s solutions are used in the process of imparting curves to the hair, we are clearly of the opinion that the word “CURVE” and the phonetic and hence legal equivalent thereof “CURV” are merely descriptive of such goods within the meaning of Section 2(e) (1) of the Act.
I would affirm the decision of the Trademark Trial and Appeal Board.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9456765. Public record. Not legal advice.