Brief in Opposition to Petition for Writ of Certiorari — Fort Howard Paper Co. v. Kimberly-Clark Corp.

Supreme Court brief1968

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PREME COURT. U. & NY din 28 Yee

| JOHN F. DAVIS, CLERK

INTHE . ~ te

Supreme Court of the United States — ”

™

October Term, 1968

Ne i 154

FORT HOWARD PAPER COMPANY, a Comeittion,

vs.

KIMBERLY-CLARK CORPORATION, a Cae

| A pplicant-Respondent.

RESPONDENT’S BRIEF IN OPPOSITION TO THE

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF CUSTOMS

AND PATENT APPEALS

DEAN A. OLDS,

Suite 1600

38 S. Dearborn St,,

' Chicago, Ill. 60603,

Counsel for Respondent.

Epwarp S. Bercer,

38 S. Dearborn,

Chicago, Ill. 60603,

of Counsel.

BATAVIA TIMES, Law PRINTERS,

° .

BATAVIA, KH. Y.

e PAGE

I WONG Sv vin wc sees enevéveuvecendca 1

Statement ee SD vanes an consncecuweeleuseses ‘

Argument ....... ee ieee Lees con

SERS Pp Ten. ee ear eet Ue nN ne A Santa 12

Appendices : ig Je oes

* Appendix “A”—Opinion of the United States Court

of Customs and Patent Appeals ................ 13

Appendix “B”—Opinion of the Trademark Trial

and Appeal Board of the United States Patent

NE sh WI oan a 6s o's ee oo ap Cpa ey en 18

Appendix “C”—Section 1, Lanham Act, 15 USC

BE Se ee bred veseen’s eee ee 7 |

Appendix “D”—Section 45, Lanham Act, 15 USC

ME ep eer cede eidcs vebedens es ee cece eaeweenes 29

TABLE OF CASEs.

Drop Dead Co. v. S. C. Johnson & Sons, Inc., 326 F.

2d 87 (9th Cir. 1963), cert. denied, 377 U.°S. 907

NG iy re cere eis Fae cagducs cance Clock 11

Esso Standard Oil Company v. Sun Oil Company, 229

F. 2d 37 (D. C. Cir.), cert. denied, 351 U. S. 973

(a cttNer be eelesecweus Gesnectscuts eeadeues 9,10

G D. Searle & Co. v. Chas. Pfizer & Co.; 265 F. 2d 385

(7th Cir.) ; cert. denied, 361 U. S. 819 (1959) ...... 12

Maternally Yours, Inc. v. Your Maternity Shop, “Inc.,

204 F; 2d 538 (2nd Cir. 1956) ;...... ccc cccccccccs 11

Montgomery Ward & Co. v. Sears, Roebuck & Co.,

49 ¥. 2d 842 (C. C. P. A. 1981) ......:....... boos

Safeway Stores v. Dunnell, 172 F. 2d 649 (9th Cir.), |

cert. denied, 337 U. S. 907°(1949) ............. ae 8

II. por

| PAGE

Watkins Products Inc. v. Sunway Fruit Products, Inc.,

311 F. 2d 496 (7th Cir. —— cert. denied, 373 U.S.

GD. CRUE. exnsoess canvacedassancsnevsaseovivese oS

STATUTES. .

Section 1, Lanham Act, 15 USC 1051 .............:. 10,27

Section 45, Lanham Act, 15 USC 1127 aces 2, 10, 11, 29

)

IN THE

Supreme Court of the United States |

. October Term, 1968

No. 1492

FORT seach decmead PAPER COMPANY, a Corporation,

Opposer-Petitionen,

vs. ae

KIMBERLY-CLARK CORPORATION, a Ree .

Applicant-Respondont.

RESPONDENT’S BRIEF IN OPPOSITION TO THE

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF CUSTOMS

AND PATENT APPEALS

Respondent would have m _— preferred to accept the

statement of the issues and th sis of the record as

they were set forth in petitioner’s solar and to address itself

to the law of the case. However, in the interest of a full

presentation of the record and \issues below, respondent

feels compelled to amplify the statements set forth in

petitioner’s brief. - ‘a paola

Questions Presented

a Did the United States Court of Customs and Patent

Appeals err. when it affirmed the finding of fact by the

Patent Office Trademark Trial and Appeal Board that ‘the

use of the respective trademarks in issue, So-Dri, Soprt,

- Saur-Dri and H1-Dri, was not likely to cause confusion

or deception of purchasers. :

2. Did the United States Court of Customs and Patent

Appeals err when it affirmed the finding of fact by the

Trademark Trial and Appeal Board that respondent’s

sales of products, in limited quantities, constituted ‘‘use’’

of respondent’s trademark as defined in 15 USC 1127.

Statement of the Case

The deusiniia feature of the. case below was the effort

by petitioner to claim broad trademark rights in the term

‘‘Dry’’ and its equivalent ‘‘Dri’’ where those terms ap-

pear as components of trademarks used to identify paper

towels used for drying purposes. Petitioner’s notice of

opposition in the Patent Office pleaded a likelihood of con-

fusion between the trademarks, So-Dri, Sopry, ‘Suur-Drt,

and H1-Dry. Petitioner’s witnesses repeatedly testified

that they thought there would be conflict between So-Dnr1,

Sopry, Saur-Dri, and a number of other ‘‘Dry’’ marks,

including Perrect Dri, Wonpver Dri, Dryap, Dry Brite,

Speepry, Terry-Dry, DisH-DryEr, GLEEM-Dry, Dry-Mz-Dry,

Dryrast, Wirempri, Easi-Dri, Dryatys, and Driwet., if

such marks were used on paper towels mt 46-48; TR

29, 30).

The record below confirmed that in the field of paper

or cloth towels there have been a number of uses or regis-

trations of trademarks incorporating the term ‘‘Dri’’ or

“‘Dry.’? The Blake, Moffitt & Towne Division of Respond-

ent commenced use of the trademark Driwett in 1911

and continued use of DriweLy to identify paper towels

until about 1924; commencing in 1924, Blake, Moffitt &

Towne substituted the - enedianil Drytex to identify

paper towels and continued its use until 1934 when it

resumed use of Driwe.i and continued such use until the

present time..

“In each year since 1917 there were. substan-

tial: sales of paper towels, either . under the trademark

DriweE.u or Drytex, by respondent’s division.

There are numerous registrations of ‘‘Dry’’ or ‘‘Dri’’

trademarks by third parties in the towel field, i. e.

Trademark

Drytex

Dri-N-SHINE

Dri-KLEEN

Dry-O-Matic

Dri Master

Drymor

Drywon

DryYLo

Suprer-DrytTex

Dri-GLo

Dri-Tones

SPARKLE-DRI °

Dry-Trex

Trrry-Dri

ast-Dri

Jirry-Dry

Kast-Dri

DryFAsT

Wirr-Dry

DRYALLS

Dry-Mr-Dry

Dryap

GLeEM-Dry

WIPEMDRI

DryetTtes

Product

Paper towels

‘Towels and drying

cloths

Paper towels

‘Paper towels

Paper towels

Face and both towels

Cotton towels

Paper wipers’

Terry towels and

terrycloth

Turkish towels

Towels

Dish Towels -

Textile towels

Dish towels

Textile towels

Towels

Towels |

Towelling

Paper towels

Textile towels

Paper towels

Registration No.

723,882 (TR 165)

550,893 (TR 167)

552,103 (TR 169)

601,879 (TR171)

634,842 (TR173).

291,914 (TR175)

423,566 (TR177).

423,573 (TR179)

391,093 (TR 181)

714,791 (TR 183)

701,839 (TR 185)

666,937 (TR 187)

191,130 (TR189)

686,951 (TR191)

502,122 (TR 193)

619,998 (TR195)

395,420, (TR 197) .

644,818 (TR 199)

514,632 (TR 201)

435,786 (TR 203)

651,816 (TR 205)

* 423,976 (TR 207)

684,533 (TR 209)

264,470 (TR 211)

594,493 (TR 213),

Although its case was based on a claim that confusion

of purchasers would result ‘from such use of ‘‘Dry’’ or

' TDrr’’ in the towel field, petitioner did not produce any

evidence of actual confusion. Petitioner’s principal wit- |

nesses admitted, on cross examination, that they had never

heard of a single instance of actyal confusion between

any of the following trademarks of petitioner and any of

the other marks in the towel field incorporating the com-

ponent ‘‘Dri’’ or ‘‘Dry.”’

Petitioner’s Trademarks | Other Mark

SHur-Dri — H1-Drti

Sopri Kaypry

So-Dri DrIwELL

) JirFy-Dry

. Perrrect Dri

a Wonper Dri

Dryap

’ Dry Brite

SPEEDRY

Trrry-Dry

DisH-DryEr

GuieeM-Dry °

_ Dry-Me-Dry

DryFast

WIremprI

FKast-Drt

DrYALLS

Wire-Dry (TR4- 50).

Petitioner and respondent have had over 40 years of

contemporaneous use of their respective “Dry” or “Dri”

towel marks.

Petitioner’s trademark Respondent's trademark

and period ofuse - and period of use

Soprr (1925-1942) DriwE.y (1911-1924)

So-Dri (1956-1964) Drytex (1924-1934)

Sxur-Drr (1960-1964) Drrwexi (1934-1964)

Kaypry (1963-1964) en,

H1-Drti (1962-1964) (TR 123, 124)

’

The record below did net indicate any evidence of con-

fusion of purchasers attributable to such trademarks dur-

ing this 40 year period (TR 123, 124).

Based on such evidence the Trademark Trial and Ap-

peal Board of the United States Patent Office found that

there would not be confusion of purchasers, and held:

“Opposer’s marks So-Dai and Sxur-Dri and appli-

cant’s mark H1-Dri obviously were adopted to suggest

that the paper towels sold thereunder possess’ super-

ior drying qualities. It likewise appears from the

record that it has been a common practice for pro-

ducers of paper towels and of such competitive prod-

ucts as cloth towels to adopt as trademarks for theiz

products’ designations comprising the word ‘Dri’ or

‘Dry’ having a similar ‘suggestive connotation, such as

Dri-N-SuHine, Dri-KiLEEN, Dry-Mor, SPparRKLeprI, Hast-

Dri, Dryrast,.and Wireemprt. Under such circumstances

the scope of protection afforded opposer’s marks must |

. necessarily be narrow and manifestly eannot extend

to preclude the registration by others of similar but

otherwise distinguishable notations or trademarks for

towels . . . Accordingly, although the designations

So-Dr1, Suur-Dri, and H1-Dri may have similar mean-

' ings, the differences between them‘in both sound and

appearances are sufficient, in view of the nature of

the marks, to preclude a likelihood of confusion or

mistake as to source of the goods sold thereunder’’

(TR 220,221). (Appendix “B”, page 24.)

. The Court of Customs and Patent Appeals affirmed this

finding of fact with the statement :

‘*We see no élear error in that conclusion or in the

reasoning by which it was reached.’’ (Appendix ett

page 16.) M

The first and primary issue below was, therefore, wheth-

er the Court of Customs and Patent Appeals erred in

affirming the finding by the Trademark Trial and Appeal

Board that petitioner is not entitled to assert broad trade-

a 7 6

mark rights in a highly suggestive mark, and whether the

marks in. issue, considered in the light of their highly sug- .

gestive nature, are confusingly similar.

The’ second issue below related to the alleged good faith

of respondent in its initial sale of products under its H1-

Dri trademark. During the Patent Office opposition peti-

tioner challenged the good faith of that initial sale on the

basis that only*one dollar and ninety-one cents’ worth of

products were sold in the first sale and that there was a

lapse<ef eighteen months before the next sales under the

-Hi-Dr1 mark by respondent. The issue as to the good

faith of respondent’s first sale was not pleaded in peti-

tioner’s notice of opposition, and the Trademark Trial and

- Appeal Board commented that petitioner would not ordi-

narily be heard on an ex parte question of this sort. Never-

theless, the Trademark Board, in the interest of removing

any cloud on respondent’s H1-Dri registration held:

‘‘There is no question on the record presented but. |

that the first shipment of H1-Dri was made by appli-

cant at the request of its legal department to establish

a basis for the registration which it: now seeks and

‘that the shipment involved only a dollar and ninety-

one cents’ worth of paper products. The recipient of

the shipment, however, was a drug chain which appar-

ently had no’connection with applicant; the goods

were shipped under a commercial type label, invoiced,

and paid for in the usual manner for small shipments;

and there is nothing to suggest that these goods were

not offered for resale or that the shipnrent was any-

.. thing other than a bona fide sale. The fact that a sale -

in ecommerce was made expressly for registration pur-

poses is not damming, per se, where circumstances in-

dicate an intent to continue such use’’ (TR 222).

(Appendix “B”, page 25.)

As to the question of respondent’s intentsto continue

use of the trademark, the uncontradicted evidence indicated

that respondent’s initial interest in the use of the trademark - |

H1-Dri in the United States developed out of the use of the

trademark H1-Dri in Great Britain by respondent’s British

affiliate. For a number of years prior to the first sale in the

United States, respondent’s British affiliate had been quite

successful in selling paper towels under the Hi-Dri mark

with sales in recent years, exceeding $5,000,000 per year.

The success of the British sales program prompted respond-

ent to institute plans to market a similar towel in the United

States and to utilize the trademark H1-Drr (TR 108, 109).

) The first shipment was made on December 27, 1962 foi

respondent in Neenah, Wisconsin to Osco Drug of Wauke-

gan, Illinois and comprised 6 boxes of H1-Dri facial tissue,

- 6 boxes Hi-Drt paper table napkins, 6 rolls of H1-Dri toilet

tissue, and 6 rolls of H1-Dri paper towels. The labels and

cartons which were used to-ship the initial. production of

Hi-Dri products were printed commercial cartons which

were virtually identical to the printed commercial cartons

which were ultimately used -for large scale production

(Respondent’s Exhibits 9, 10, 11; 12, 13, 14 & 15; Petitioner’s

Exhibits 18, 19 & 20). After the initial sale of H1-Dri

products in December 1962, respondent continued

to prepare for large scale production under. its

Hi-Dr1. trademark and in July, October and No-

vember of 1964 shipped over 2,000 cases of H1-Dri products.

The lapse of time between the initial sale of H1-Dr1 prod-

ucts in December of 1962 and the bulk sales in July of

1964 is in accordance with the experience of respondent

that there is a substantial ‘interval of time between the

date on which a decision is reached to introduce a new

product and the date when such product is actually in

national distribution. Because of market tests, advertis-

ing tests, and evaluation of the product and the best mer-

ee ; ‘ :

chandising format, it has been respondent’s experience

that a normal timé:lapse in excess of three years is usually

involved between the date on which a decision is reached

to. market a product and the actual distribution of the

. product nationally (TR 107, 108). As te respordent’s:

intentions during this interim period of development the

former coordinator of new business development for re- |

spondent, testified :

Q33. Then if I understand your testimony Mr.

Glaister you were indicating that the adoption of the

'. trademark H1-Drr in the United States and the initial

- sale in December 1962, and then the more substantial

sales starting in July 1964,.are part of the continuing

‘program in which it is the intent of Kimberly-Clark to

109). to use this mark? A. That is correct”? (TR

| The Patent Office Trademark Trial and Appeal Board

- found that the evidence indicated an intent on respondent’s

part to continue use of the trademark and the Court of

Customs and Patent Appeals affirmed this finding of fact.

with the statement :

‘‘The board held, in effect, that eo has com-

plied with the law, and that although the initial sale

was deliberately made expressly for federal registra-

tion purposes, this fact ‘is not damming per se’ where

the recard shows there was an intent to continue to

use the mark, and that such use was in fact continued.

The board relied on the following cases: Montgomery

Ward & Co. v. Sears, Roebuck & Co., 18 CCPA 1386,

49 F’, 2d 842, 9 USPQ 524; Cali. ornia Spray-Chemical

Corp. v. Ansbacher Siegle orp., 55 USPQ 298

(Comm’r) ; Western Stove Co. v. Geo. D. Roper Corp.,

80 USPQ 393 (S. D. Cal. 1949) ; and Maternally Yours,

Inc. v. Your Maternity Shop, Inc., 110 USPQ 462 (2d .

Cir. 1956). Appellant attempts, unsuccessfully we —

think, to distinguish these cases. Appellee’s testimony

> was that it normally takes it about three years after

adoption and first use of a new mark to take the neces-

sary steps leading to national distribution of a product

under it, during which time marketing and advertising

tests and preparation for production and.sale are pro-

gessing. An eighteen-month hiatus in sales, absent

any indication of an intent not to proceed, does not

seém to us- unreasonable. We think it appropriate.

that appellee should proceed with caution to try out

its right to registration of ‘H1-Dri’, as it is doing in

this proceeding, before plunging into the market with

more extensive sales than it did. We agree with the

board’s decision that appellee complied with the law.”’

(Appendix “A”, page 1/.) |

| Argument

There are two findings as to the nature and weight of

the evidence which are basic to the decisions below. The

first finding is that, under all of the circumstances found .

in the record, .purchasers will not be confused by the

trademarks in issue. The second finding is that the evi-

dence indicates an intent, on respondent’s part, to continue

use of its trademark. However interesting or compelling

the litigants may find these questions to be, this case does

not bring into focus any substantial question of trademark

law.

The finding that purchasers will not be confused is a

finding of fact. Watkins Products Inc. v. Sunway Fruit

Products, Inc., 311 F; 2d 496 (7th Cir. 1962), cert. denied,

373 U. S. 904 (1963). Moreover, since the Patent Office is ..

possessed of expertise in this field, the finding of fact on

the issue of likelihood of confusion should be accepted as

cnraling les the contrary is established by evidence

which in character and amount éarries thorough conviction.

Safeway Stores v. Dunnell, 172 F. 2d 649 .(9th Cir.), cert.

denied, 337 U. S. 907 (1949); Esso Standard Oil Company

mmm ei ea

v. Sun Oil Company, 229 F. 2d 37 (D. w Cir.), cert. denied,

351 U. S. 973 (1956).

Petitioner raises the spectre that the present case, unless

reviewed and reversed by this Court, will establish the

proposition that a “paper registration” of a trademark is

valid and, allegedly, will permit the harassment of ‘‘legiti-

mate’? trademark owners as they are now harassed in

‘‘certain Latin American and South American countries’’

(Pet. Br. pp. 4, 5). Petitioner’s definition of this ‘‘ques-

tion’’ as set forth in its Questions Presented, numbers 1

and 2, begs the basic question of fact which was auswered

contrary to petitioner’s position in the decisions below,

and, insofar’ as petitioner refers to conditions in Latin” |

_ America or South America, it departs from the facts and

the record before this Court. There igs nothing in the pres-

ent case which will establish the precedent so alarming to

petitioner. ‘The requirement of ‘‘use’”’ of a trademark is

set forth in Section One in the Lanham Act, 15 USC 1051

(Appendix C) which provides in part, ‘‘The owner of a

trademark used in commerce may register his trademark

under this Act . ° .”? (Emphasis added). Section 45 of

the Lanham Act (15 USC 1127) (Appendix D) defines the

sae ‘‘used in commerce”’ as follows:

. For the purposes of this Act a mark shall be

Senta to be used in commerce (a) on goods when

it is placed in any manner on the goods or their con-

tainers or the displays associated therewith or on the

tags or labels affixed thereto and the goods are sold

or transported in commerce. . .” (Emphasis added)..,

The plain meaning of the words ‘‘in any manner”’’ is_

that the qualifying use need not be on a vast. scale nor

must it be accompanied by all of the embellishments of a

national sales effort. The first use is the use which occurs

ll -

when the first, albeit single, sale occurs. Nothing more is:

required by the statute or by the numerous decisions inter-

preting it (Maternally Yours, Inc. v. Your Maternity Shop,

Inc., 234 F. 2d 538 (2nd Cir. 1956) ; Montgomery Ward &

Co. v. Sears, Roebuck & Co., 49 F. 2d 842 (C. C. P. A.

1931). This identical issue was brought to the attention

of this Court in Drop Dead Co. v. S. C. Johnson & Sons,

Inc., 326 F. 2d 87 (9th Cir. 1963), cert. denied, 377 U. S.

907 (1964). In the decision below, the Court of Appeals

trenchantly summarized the prevailing law as follows:

‘¢ Appellants sent one can of Promise, with the label

anpropriately attached, from Los Angeles to New York.

It was thus ‘transported in,commerce’.. .

“ . , Appellant’s attempt . . . to avoid this con-

clusion by the contention that the sending of the item

for such use was not an actual use but only a colorable

use, in that it was only transported to obtain the trade-

mark, Appellants try to show that it is ‘plainly,

apparent from the context [of the trademark statutes ]’

e (15 USC 1127) that colorable use was to be distinguish-

ed from actual use. However, we think the statute,

makes no such distinction. Its language is clear. If

the label. is affixed and the goods transported in com-

merce, the mark is ‘used in commerce’.’’ (326 F. 2d.at

-93, 94) (Brackets, Parentheses & Emphasis by the

Court.) ‘

It is apparent that the lower court, in the present case,

correctly applied 15 USC 1127 when it affirmed the finding

that respondent had used its trademark in commerce. And

such correct application of 15 USC 1127 is neither harass-

-ment of any legitimate trademark owner nor does any

danger impénd to the free use of trademarks in the United

States. ; y

Finally, petitioner finds that the decision below is in —

conflict with prior decisions of the Court of Customs and

ee rrerieeeneneneeniheineneeeeeemeeeeeenenmemnmmmemmmmmmmmmn

Patent Appeals and urges that this Court give proper and

consistent guidance to the Court below. The cases cited ”

‘by petitioner to illustrate the ‘‘conflict’’ are clearly dis-

tinguishable on their facts, and it is well established that

decisions in the area.of trademark and unfair competition

law, turn on the particular facts involved and, for this

reason, other decisions are limited precedential value in

deciding the basic questions of fact (G. D. Searle & Co. v.

Chas. Pfizer & Co., 265 F. 2d 385 (7th cir.); cert. denied,

, 361 U.S. 819 (1959). |

Conclusion

The decision of the court below is correct insofar as both

issues are concerned. . The petition for certiorari should be

denied. |

Respectfully submitted,

DEAN A. OLDS,

38 South Dearborn Street,

Chicago, Illinois 60603,

Counsel for Respondent.

Epwarp S. Brercer,

38 S. Dearborn,

Chicago, Ill. 60603,

of Counsel.

13.

APPENDICES TO RESPONDENT’S BRIEF IN OPPO-

SITION TO THE. PETITION FOR WRIT

OF CERTIORARI

‘APPENDIX “A”

Opinion of the United States Court of Customs

and Patent Appeals

UNITED STATES COURT OF CUSTOMS

AND PATENT APPEALS

October Term 1967.

~ Patent Appeal No. 7915.

Opposition No. 43,376.

—

" FORT HOWARD PAPER COMPANY,

Appellant,

KIMBERLY-CLARK. CORPORATION,

Appellee.

March 14, 1968

RICH, Judge.

This appeal is ap ora a decision of the Patent Office. Trade-

mark Trial‘and Appeal Board, 148 USPQ 607, dismissing _

appellant’s opposition to the registration by appellee of

“Hi-Dri’”’ on the Principal Register for “Absorbent Paper

Tissue Suitable for Hygienic, Cosmetic, or Cleaning Pur-

poses,” serial No. 160,711, filed January 15, 1963, claiming

first use December 27, 1962.

. " °

Appellant’s opposition “is based on the admittedly long

prior use as trademarks for paper towels of “So-Dru,’”?

principally relied on, its earlier-used variant “Sodri,’? and

“Shur-Dri.” 7

Both parties took testimony, the witnesses for each side

being cross examined by counsel for the other.

The appeal presents two issues: (1) likelihood of con-

fusion, etc., within the meaning of section 2(d) of the Lan-

_ ham Act (15 USC 1052(d));* (2) whether appellee made

‘ bona fide commercial use of its mark so as to support right

to register.®

The essential facts shown by the testimony ana exhibits

are adequately summarized in the board’s published opin- .

ion and we see no need to repeat them. ‘The highlights are

that opposer’s registered marks have been used extensively ©

on paper towels designed and sold to automotive service

stations for cleaning windshields and the like. Applicant’s

goods include paper towels and there is, therefore, identity

of goods.

A key factor in the board’s decision of no likelihood of

confusion is the descriptiveness of the term “dry’’ or “dri”

as applied to any kind of towel and the apparent common- _

place use of that term as a syllable or part of trademarks

adopted and used by applicant-appellee and third parties .

for towels of both paper and cloth.- The record shows use

by what is now a division of applicant, Kimberly-Clark,

(1) Reg. No. 651,198, Sept. 3, 1957, for paper towels. ;

(2) Reg. No. 165,832, Mar. 20, 1923, twic® renewed, last renewal for paper

towels only, and No. 651, 196, Sept. 3, 1957, for paper towels.

, 8) Reg. No. 720,359, Aug. 22, 1961, for paper towels.

(4) Appellant makes two issues out of this by separately stating them as

“confusing similarity” of the marks and likelihood’ of confusion, mistake, or

deception. These are, however, inseparable aspects of a single issue, as we view

the matter.

(5) There is no question but that the mark was used, under conditions hefein-

after explained, and appellant disavows any reliance on a theory of abandon-

ment. Ps

since 1911, of ‘‘Driwell” on paper towels, Reg. No.522,321,

except for the period 1924-1934 when “Drytex” was used

instead. In the 1941-1964 period some 2,000,000 cases of

“Driwell” towels were sold. Kimberly-Clark also has a

registration of “Kaydry,” No. 774,552, for disposable tow-

els which the record shows to be paper towels. There are,

in addition, 25 third-party registrations of record of marks .

containing ‘‘dry” or “dri,” 11 of them for paper towels and

14 for cloth. towels. The paper towel marks are in several

instances the subject of. recent or renewed registrations,

indicating a probability of recent or present use. -

Notwithstanding the apparent similarities between “So- —

Dri” in particular and “Hi-Dri,” the board concluded there

would be no likelihood of confusion on the following basis:

Opposer’s marks “So-Dri” and “Shur-Dri’’ and

applicant’s mark “Hi-Dri” obviously were adopted

to suggest that the paper towels sold thereunder .

. possess superior drying qualities. It ikewise appears

from the record that it has been a common practice

for producers of paper towels and of such competitive

products as cloth towels to adopt as trademarks for |

their, products designations comprising the word

“Dry” or “Dri”, having a similar suggestive connota-

tion, such as “Dri-N-Shine”, “Dri-Kleen”;, “Dry-

Mor”, “Sparkle-Dri’’, “Easi-Dri”, “Dryfast”, and

“Wipemdri”. Under such circumstances, the scope

of protection afforded opposer’s marks must necessar-

ily be narrow and manifestly cannot extend to preclude

the registration by others of similar but otherwise dis-

tinguishable notations or trademarks for towels.

[Cases eited.] * * * The fact, as urged by opposer,

that its marks and that of applicant are hyphenated

- marks and the. syllable ‘‘Dri’’ appears therein as a

prefix instead of a suffix as in the third-party registra- -

tions is of no particular significance * * *. According-

ly, although the designations: “So-Dri”, “Shur-Dri”,

and ‘‘Hi-Dri” may have similar meanings, the differ-

ences.between them in both sound and appearances are

sufficient in view of the nature of the.marks, to pre-

elude a likelihood of confusion or mistake as to the

source of the goods sold thereunder.

We see no clear error in that conclusion or in the reason- ;

ing by which it was reached.

Compare Fort Howard Paper Co. v. Gulf States Paper

Corp., 54 CCPA 1375, 376 F. 2d 904, 153 USPQ 646, where

opposition to registration of “E-Z Naps’? by the owner of

“HanpinaP” and “Hanpinaps”-was dismissed, the goods

of both parties being paper napkins.

On the second issue, it is opposer’s contention that there

was no bona fide use of “Hi-Dri” in commierce adequate

to support a registration. Briefly, the facts are as follows.

Kimberly-Clark’s legal department made careful arrange-

ments.for the interstate shipment and sale on December

12, 1962, from its plant in Neenah, Wisconsin, to a drug-

' store in Waukegan, Illinois, of six boxes each of facial

tissues, table napkins, toilet ti@sues and paper towels, all

- boxed or wrapped in coverings bearing the “Hi-Dri’’ trade-

mark printed thereon. No further sales were made until

July 1964, a period of eighteen months. Then sales under

the mark were made as follows: July, 40 cases of toilet tis-

sue and 260 cases of facial tissue ; October, 700 cases of toi-

let tissue, 530 cases of facial tissue, and 357 cases of towels;

November, 350 cases of toilet tissue and 50 cases of napkins.

The total value of 1964 sales under the mark was $15,013.60.

Appellant argues that the first sale was not “bona fide,”

that the mark was not actually in use at the time the appli-

cation was filed, some 18 days later, and that the 1964 sales -

were obviously stimulated by the opposition.

The board. characterized this issue as an “ ex’ parte” |

matter but considered -it anyway, “in the interest of re-

moving any cloud that may be placed on applicant’s activi-

ties in regard to its use of ‘Hi-Dri’ *.* *.”’ Since the board

considered it, we will consider it.

The board held, in effect, that applicant has complied —

with the law, and that although the initial sale was de-

liberately made expressly for federal registration pur-

poses, this fact “is not damning per se” where the record

shows there was an intent to continue to use the mark,

and that such use was in fact continued. The board re-

lied on the following cases: Montgomery Ward €& Co. v.

Sears, Roebuck.¢ Co., 18 CCPA 1386, 49 F. 2d 842, 9 USPQ

_ 524; California Spray-Chemical. Corp. v. Ansbacher Siegle

Corp., 55 USPQ 298 (Comm’r); Western Stove Co. v.

Geo. D. Roper Corp., 80 USPQ 393 (S. D. Cal. 1949); and

Maternally Yours, Inc. v. Your Maternity Shop, Inc., 110

USPQ 462 (2d Cir. 1956). Appellant attempts, unsuccess-

fully we think, to distinguish these cases. Appellee’s testi-

-* mony was that it normally takes it about three years after

- adoption and first use of a new mark to take the necessary

"steps leading to national distribution of a product under

it, during which time marketing and advertising tests and

preparation for production and sale are progressing. An

-eighteen-month hiatus in sales, absent any indication of

an intent not to proceed, does not seem to us unreasonable.

We think it appropriate that appellee should proceed with

~ caution to try out its right to registration of “H1-Dri,” as —

it is doing in this proceeding, before plunging: into the

market with- more extensive sales than it did. We agree

with the board’s decision that appellee complied with the

law. 7 7 a |

“

(6) We do not know why an opposer should be pr uded ag raising this

reason for denying registration in an inter partes See Roger &

Gallet v. Janmarie, Inc., 46 CCPA 787, 263.F. 2d 350) 120 USPQ 484, on the

delay of final dis sition which may result from the aracterization of rulings

as “ex parte.” ere both parties are arguing the’question and neither ques- .

tions our right to pass upon it.

For the foregoing reasons, the decision dimiesing the

ee, is affirmed. .

: AFFIRMED |

WORLEY, C. J., did not participate. -

APPENDIX “B” | P

"+ Opinion of the Trademark Trial and Appeal Board

of the United States Patent Office

‘Hearing: ~ | | VLH

October 5, 1965 _—_ ye Paper No. 28

U. S. DEPARTMENT OF COMMERCE

Patent OFFICE

Trademark Trial and Appeal Board

FORT HOWARD PAPER COMPANY,

. oe

KIMBERLY-CLARK CORPORATION.

Opposition No, 43,376, to application Serial No. 160,711,

, filed January 15, 1963.

“Morsell & Morsell and Poul J: Schierl for: Fort Howard

Paper Company. _

Paul J. Glaister and Florence E. Miller and Hume,

Groen, Clement & Hume for Kimberly-Clark Corporation.

Before Waldstreicher, Lefkowitz, and Shryock, Members.

” ) * J , =

Opinion by Lefkowits, Member:

° An application has been filed by Kimberly-Clark Corpo- -

ration to register “Hi-Drr” as a trademark for absorbent

paper tissue suitable for hygienic, cosmetic or cleaning

purposes. Use of the mark since December 27, 1962 has

been alleged.

‘Registration has been ai by Fort Howard Paper

Company, which alleges that applicant’s mark “H1-Drr”

so resembles ‘‘So-Dr1’’,™ ‘‘Sopri’’,® and ‘‘SHur-Drr’’®

previously used and registered by opposer for absorbent '

paper tissue suitable for hygienic or cleaning purposes and,

in particular, paper towels, as to be likely, when applied to

= s goods to cause confusion or mistake or to de-

celv

‘Both parties have taken testimony.

According to its record, opposer is engaged in the manu-

facture and sale of a general line of sanitary paper prod-

ucts, which include toilet tissue, paper towels, paper nap-

kins, and printed specialties, the bulk of which is designed.

for and directed to industrial and commercial use. . Op-

poser has sold paper towels designed and merchandised-

“especially for use in service -stations to wipe and. clean

windshields and other portions of automobiles under the .

marks ‘‘So-Dri’’ and ‘‘Suur-Dri’’ since 1956 or the spring

of 1957 and 1960, respectively. Prior to 1956 or there-

‘about, opposer used the trademark ‘‘Soprr’’ to identify a

general purpose hand towel sold with or without a dispen-

ser for use in washrooms in factories, restaurants, schools,

and like commercial and institutional establishments. Op-

(1) Reg. No. 651,198, issued Sept. 3, 1957.

(2) Reg. No. 165,832, issued Mar. 20, 1923, and twice renewed, and Res.

No. 651,196, issued Sept. 3, 1957.

(3) Reg. No. 720,359, issued Aug. 22, 1961.

~~.

- poser’s windshield wiper towels are marked throughout

the continental United States and possibly also in Hawaii

through: wholesale paper merchants, janitorial supply |

houses, wholesale automobile supply merchants, and insti-

tutional wholesalers who ordinarily also handle paper

products of'other producers. The marks ‘‘So-Dri’”’ and

‘‘Suur-Dri’’? have been applied to labels and wrappers

- for the goods as well as to the containers therefor. Sales of

‘*So-Dri’’ towels: since. 1960 have been in excess of one

hundred thousand dollars a year. ‘‘So-Dri’’ towels have

been promoted by advertisements in the trade publications,

“Jobber Topics”, “Super Service Station”, and “Gaso-

line Retailer’’, and through the distribution of posters,

catalog sheets, flyers, and mailing pieces. Opposer has, .

since the introduction of windshield towels under the mark

“*So-Dri’’, expended approximately a hundred thousand.

dollars for magazine advertising as well as additional thou-

sands of dollars for preparing and distributing promo-

tional material directed to this product.

Applicant, like oppeser, is a large manufacturer of paper

- products, including ¢ variety of absorbent paper products

such as towels, tissue, toilet paper, and table napkins. The

first shipment of products in the United States under the

* mark ‘‘Hi-Dri’’ was made on December 27, 1962 when six

boxes of ‘‘H1-Dri’’ facial tissue, six boxes of ‘‘H1-Dri’’ table —

napkins, six rolls of ‘‘H1-Dri’’ toilet tissue, and six rolls of

“Hi-Drr” towels were shipped in. interstate commerce to

Osco Drug of Waukegan, Illinois. The labels and cartons

- bore the trademark ‘*Hi-Drr’’. The total shipment amount-

ed to one dollar and ninety-one ‘cents. The subject applica-

tion was filed on January 15, 1963. Except possibly for

some sales in’ Canada in connection with the registration

_ of the mark in that country, no further shipment of goods

under tlie mark ‘‘ H1-Dri’’ were made by applicant until July

1964. The lapse of time between shipments, according

to applicant’s testimony, was the normal lapse of time be-

tween the date on which a decision is reached to introduce

a new product and the date when such product is placed in .

national distribution. In the interval, applicant usually |

- conducts market tests, advertising tests, evaluations of the

_ product, determines. the best advertising format, and other-

wise takes measures whieh it has found necessary prior to

the distribution of a product nationally. Applicant’s- sales

of ‘‘H1-Dri’’ products amounted to a sum slightly in excess

of one thousand seven hundred dollars in July, 1964, a sum

in excess of ten thousand dollars in October, 1964, and

about thirty-one hundred dollars in November, 1964. Ap-

plicant’s line of ‘‘H1-Dri’’ paper products are sold exclu-

sively through; its industrial or. commercial division

_ throughout most of the. United States directly to multiple

outlet users such as hotels, motels, airlines, factories, and

the like and through merchant wholesalers who handle a

general line of paper goods, janitorial supply merchant

wholesalers, and similar wholesalers for. resale to jobbers -

’ who in turn sell to institutional and commercial users. Ad-

mittedly, “Hi-Dr1” paper products would be sold to filling’

stations either directly if they are a part of a large chain

or through jobbers. ~

Applicant’s record also contains ‘testimony and’ docu-

mentary evidence as to its use and registration of the trade-

mark ‘‘ Kaypry’’ for paper products and use, over the years,

by one of its subsidiaries of the mark “Drytex” and

(4) Applicant's witness has seatlied to alleged extensive use of the mark

“Hi-Dri” on paper products by its subsidiary in England and other foreign

countries. But, apart from the fact that such asserted use does not antedate

opposer’s use of its pleaded marks it is well established that use of a mark in

commerce: outside the jurisdiction of the Congress cannot establish or create

rights in a trademark which a party can properly assert in a proceeding of

the charaeter here involved. _

)) %

“DriwE.u” for similar goods. Considering, the substantial

- and obvious differences between these marks and ‘‘H1-Dri’’,

the mark for which registration is sought, the use and regis-

tration of these marks is immaterjal and irrelevant to the

issue joined by the parties in this preceeding except to the

extent that they show that applicant and its subsidiary have

used other marks for paper goods comprising the terni

; ‘‘Dry’’ and its equivalent ‘‘Drr.‘ Apropos thereto, ap-

’ plicant has made of record under the applicable rule copies

of twenty-five additional registrations issued to third per-

sons for marks comprising the term ‘‘Dry”’ or ‘‘Dr1’’ for -

paper and cloth towels. |

The primary question for determination herein is whether

or not a registration to applicant of ‘‘Hi-Drt’”’ for its paper

products is likely to cause confusion in trade in view of op: -

poser’s ownership of and prior rights in the registered

trademarks “So-Drr” or “Soprr” and “Sxur-Dri”. The

. fact that these marks are used by the parties in conjunc-

tion with or in close proximity to their corporate names is

not germane to the resolution of this question. See: Fran-

ces Denney v. Elizabeth Arden Sales Corporation, 120 Us

PQ 480 (CCPA, 1959) and Sealy, Incorporated v. Simmons

Company, 121 USPQ 456 (CCPA, 1959).

Opposer has attempted to establish the likelihood of such

confusion by introducing in evidence testimony by two op-.

erators of service stations in Green Bay, Wiscqnsin where

_ opposer is located to the effect that they utilize ‘‘So-Drr’’

windshield towels in their businesses ‘and that if they were

to encounter ‘‘H1-Dri’’ towels, they would be likely to as- |

sume that they originate with the same producer. This

(5) Salem Cites eemneented v. The Miami Margerine ‘Company,

114 USPQ 124 (CCPA, 1957); American Cyanamid Company v. Synthetic

Nitrogen Products Corp., 13 USPQ 421 (CCPA, 1932); and Maize Industries

v. The Holloway Trust, 128 starring 19 (TT&A Bd., 1960).

2 eee eee —QQGaaEar’’Srere eet aa ne ee,

testimony amounts to nothing more than an expression of

opinion by the witnesses. And-it is well-settled that such

testimony is entitled to little, if any, probative value in de-

termining the question of likelihood of confusion. As stated .

by the court in The Quaker Oats Company v. St. Joe Pro-_

cessing Company, Inc., 109 USPQ 390 (CCPA, 1956) at

page 391: -

‘‘Tf such testimony were adopted without considering

other aspects of the case, the effect would be to sub-

stitute the opmions of the witnesses for the ultimate

decision to be reached by the court and would there- .

_ fore be improper.”’ | |

. See also: Fort Howard .Paper Company v. Gulf States

Paper Corporation, 146 USPQ 593 (TT&A-Bd., 1965). ~

‘Turning now to the question that we must determine,

the goods of both parties comprise hand towels and close-

ly related paper products which are sold through various |

types of non-inclusive distributors or wholesalers includ-

ing wholesale paper merchants and janitorial supply houses

for resale to commercial, industrial, and institutional users. |

Under these circumstances and considering that appli- .

cant’s products, like: those of opposer, would be made

. available to servicé station operators, the sale of these

products under the same or similar marks will cause pur- - 3

chasers to ascribe a common origin thereto.

y It is opposer’s contention that the marks of the parties

and, in particular, ‘‘H1-Dri’’ and ‘‘So-Dri’’, are confusing- -

_ly similar when considered in their entireties, ‘shaving

_ the.same connotation, a similar appearance, and a simi-

lar ring when spoken’’. Applicant argues, however, that

each of the marks is highly suggestive of the excellant

drying qualities of the towel put out by each manufacturer,

and that other than this common theme or suggestion, the

marks are sufficiently different to obviate any likelihood

of confusion in trade.

Opposer’s marks ‘‘So-Dri’’ and ‘‘Suur-Dri’’ and appli-

cant’s mark ‘‘H1-Dri’’ obviously were adopted to suggest

that the paper towels sold thereunder possess superior

drying qualities. It likewise appears from the record that

‘it has. been: a common practice for producers of paper

towels and of such competitive products as cloth towels

to adopt as trademarks for their products ‘designations

comprising the word ‘‘Dry’’ or ‘‘Dri’’, having a similar

suggestive connotation, such as ‘‘Dri-n-Suine’4, ‘‘Dri-

Kueren’”’, ‘‘ Dry- Mor’’, ‘‘Sparkue- Drr’’, ‘Riast-Dri’’, ‘‘ Dry-

scope of protection afforded opposer’s marks must neces-

_ sarily be narrow and manifestly cannot extend to preclude

the registration by others of’ similar but otherwise. dis-

tinguishable notations or trademarks for towels. See:

Stephen L. Bartlett Company v..Arbuckle Brothers, 52

App. D. C. 267 (1923); Hillyard Chemical Company v.

Vestal Laboratories, Inc.; Vestal ‘Laboratories, Inc. v.

Hillyard Chemical Company, 99 USPQ 117 (CCPA, 1943) ;

Milwaukee Nut Company v. Brewster Food Service, 125

. USPQ 399 (CCPA, 1960); Sure-Fit Products Company

1, Saltzson Drapery Company, 117 USPQ 295 (CCPA,

1958); The Murray Corporation of America v. Red Spot

Paint and Varnish Co., Inc., 126 USPQ 390 (CCPA, 1960) ;

E. L. Bruce Compas v. American Termicide Company,

‘The., 128 USPQ 341 ( CCPA, 1960) ; and Air Products, Ine.

v. Marashite Manufacturing Co:, Inec., 133 USPQ 192 .

(CCPA, 1962). The fact, as urged’ by opposer, that its

marks and that of applicant are hyphenated’ marks and;

the syllable ‘‘Drr’’ appears therein as a prefix instead of

a suffix as in the third-party registrations is of no particu-

lar significance as evidenced by: the decisions in Sure-Fit

Products Company v. Saltzson Drapery Company, supra .

(Rire-Fir and Sure-Fir); Hillyard Chemical Company v.

Vestal Laboratories, Inc., supra (Surne-Atu and Briren-

Aut); and Air Products, Ine. v. Marquette Manufacturing

Co., Inc., supra (Rep1-Arc and Repr-Ser). Accordingly,

although the designations ‘‘So-Dr1”’, ‘‘Suur-Drr’’, and —

‘‘Hi-Dri”? may have similar meanings, the differences

between them in both sound and appearance are sufficient,

in view of the nature of the marks, to preclude a likelihood

of confusion or mistake as to the source of the. goods sold.

thereunder.

Opposer, in effect, has taken the position that, apart

from the interpartes issues in this proceeding, applicant

should be refused registration ex parte because the first’

shipment on which the application is based was merely a—

token shipment made for the express purpose of registra-

tion, and hence does not constitute a bona fide use of the

mark in commerce; there were no further shipments by

applicant under the mark ‘‘H1-Dr1’’ until July 1964; and

the subsequent shipments were so small,for a company of

applicant’s size and so sporadic ‘‘as to have obviously been

made for the purposes. of the present opposition rather

than as a part of bona fide commercial activity’’.

While an opposer may not. ordinarily be heard’ on an’

ex parte question, in the interest of removing any cloud

that may be placed on applicant’s activities in regard .to °

its use of ‘‘H1-Di1’’ in the United States, opposer’s. alle-

gations require that they be considered herein.

There is no question ‘on the record presented but_ that

the first shipment of ‘‘H1-Dri’’ was made by applicant

at the request of its legal department to establish a basis

- for the registration. which it now seeks, and that the ship-

ment involved only a ‘dollar and ninety-one cents worth of

paper products. The, recipient of the shipment, however,—-~

was a drug chain which apparently had no connection with

applicant ; the goods were shipped under a commercial

type label, invoiced, and paid for in the usual manner for

small shipments; and there is nothing to suggest that

these goods were not offered for resale or that the ship-

ment was anything other than a bona fide sale. The fact

that a sale in commerce was made expressly for registra-

tion purposes is not damning, per se, where circumstances

' indicate an intent to continue such use. See: Maternally

Yours, Ine. v. Your Maternity Shop, Ine., 110 USPQ 462

(CA 2, 1956); Western Stove Company, Inc. v. Geo. D.

- Roper Corporation et al., 80 USPQ 393 (DC Calif., 1949) ;

Montgomery Ward & Co., Ine. v. Sears, Roebuck & Co., 9

USPQ 524 (CCPA, 1931); and California Spray-Chemical

-_ Corporation v. Ansbacher Siegle Corporation, 55 USPQ

298 (Comr., 1942). Admittedly, there were no further

shipments in the United States until. July 1964; but there

is uncontradicted testimony by applicant’s witness that,

during this interval, applicant was conducting marketing

tests and analyses which it deemed necessary prior to

merchandising ‘‘H1-Dri’’ products on a national scale.

Certainly, the record does not support an intent to aban-

don the mark during this period nor does the eighteen

month interim of sales inactivity establish'a prima facie

case of abandonment as defined in Section 45 of the Statute;

and while the sales of “H1-Drr’ paper produets after July

1964 may not have been of the magnitude normally associ-

ated with a manufacturer of applicant’s size, they. never-

theless were shipments under the mark in question and

serve to. establish applicant’s intent to continue to use

and maintain whatever rights it may have acquired in

the mark ‘‘H1-Dr1’’.

Decision:

. 5 H. WALDSTREICHER,

| S. LEFKOWITZ,

R. F. SHRYOCK,

Members, Trademark Trial and

Appeal Board.

JAN 3 1966 .

APPENDIX, “C”

"6 Section 1, Lanham Act, 15 USC 1051

§ 1051. RecIsTRATION; APPLICATION ; PAYMENT OF FEES; DESIG-

NATION OF RESIDENT FOR SERVICE OF PROCESS 4ND —

NOTICE

The owner of a trade-mark used in commerce may regis- -

-ter his trade-mark under this snagtor on the principal

(a) By filing 1 in the Patent ‘Office—

(1) a written application, in such form as may be

prescribed by the. Commissioner, verified by the appli- .

‘eant, or by a member of the firm or an officer of the

corporation or associatign applying, specifying appli-

cant’s domicile and citizenship, the date of applicant’s

first use of the mark, the date of applicant’s first use

of the mark in commerce, the’ goods in connection with

which the mark is used and the mode or manner in

Ss. )

which the mark is used in connection with such goods,"

and including a statement to the effect that the person

making the verification believes himself, or the firm,

‘corporation, or association in whose behalf he makes

the verifieation, to be the owner of the mark sought to -

be registered, that the mark is in use in commerce, and ~_

‘that no other person, firm, corporation, or association, .

to the best of his knowledge and belief, has the right to

use such mark in commerce either in the identi¢al form *

thereof or in such near resemblance thereto as to be

likely, when applied to the goods of such other persons,

to cause confusion, or to cause mistake, or to deceive:

Provided, That in the case of every application claim-

ing concurrent use the applicant shall state exceptions

’ to his claim of ‘exclusive use, in which he shall specify,

to the extent of his knowledge, any concurrent use by -

others, the goods in connéction with which and the

areas in which each concurrent use exists, the periods |

of each use, and the goods and area for which the

applicant desires registration ; loa

(2) 08

(3) #88

(b) te° - !

(ce) eee. |

(d) ** * July 5, 1946, c.°540, Title I, § 1, 60 Stat. 427;

Oct. 9, 1962, Pub. L. 87-772, § 1, 76 Stat. 769.

s: bee ' -

APPENDIX “D” |

Section’45, Lanham Act, 15 USC 1127

§ 1127. Consravction AND DEFINITIONS; INTENT OF CHAPTER

In the construction of this chapter, unless the’ contrary

is pisiply apparent from the context—

« * * *

The term “mark” includes, any trade-mark, service mark,

¢ollective mark, or certification mark entitled to registra-

tion under this chapter whether registered or not. ;

For the purposes of this chapter a mark shall be deemed

to be used in commerce (a) on, goods when it. is placed in

-any.manner on the goods or their containers or the displays —

associated therewith or on the tags or labels affixed thereto

and the goods are sold or transported i in commerce and (b)

' on=services when it is used ‘or displayed in the sale or

advertising of services and the services are rendered in

commerce, or the services are rendered in more than one

State or in this and a foreign country and the person

‘rendering the services is engaged in commerce in connec-

- tion therewith. : ;

j* * #

The intent of this chapter is to regulate commerce within

the control of Congress by making actionable the deceptive

and misleading use of marks in such commerce; to protect

registered marks used in such commerce from interference

by State, or territorial legislation ; to protect persons en-

gaged in such commerce -against unfair competition; to

prevent fraud and deception in such commerce by the- use

of reproductions, copies, counterfeits, or colorable imita-

* tions of registrated marks; and to'provide rights and’reme-

- ak stipulated ‘by treaties and conventions respecting

trade-marks, trade names, and unfair competition entered

into between the United States and foreign nations. J ee,

5, 1946, c. 540, Title X, 3.45, 60 Stat. 443; Oct: 9, 1962, "

L. 87-772, § 21, 76 oe. 774.

** * *

”

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.