Patterson-Sargent Co. v. Indiana Indestructible Paint Co.

SMITH, Acting Associate justice.

On the 11th day of February, 1920, the Indiana Indestructible Paint Company filed in the Patent Office its application for the registration of an orange-colored ring having a green center and a white border. The design carries, an elongated diamond, which ‘passes diametrically through the green center and extends beyond the white border. The orange ring bears the black-lettered words “Indiana Paint Company,” and the diamond the white-lettered word “Indestructible.” The figure is superimposed on an orange-colored cup-shaped base with a black and white border. On the orange-colored portion of the base is printed in black letters, the words “Paints, Stains and Enamels.”

The Patterson-Sargent Company opposed the registration of the mark on the ground that it was similar to trade-marks previously appropriated by the opposer, and would be likely to cause confusion in the trade and mislead the public as to the origin of the goods to which it was applied.

The typical mark of the opposer, claimed to be simulated by that of the applicant, is an orange-colored circular figure which has a narrow white border and rests on a white-bordered orange-colored rectangular base. On the orange-colored circular figure is printed the letters “B. P. S.” or “A to Z Brand,” and on the orange-colored base either the words “Ready Mixed Paints,” or the words and figures “House Paints, Chocolate — 244—Brand.”

The large green disk in the center of the applicant’s symbol, and the diamond-shaped blue figure bearing in large white letters the distinctive part of applicant’s name, are prominent features of the mark for which registration is sought, and completely distinguish it from that of the opposer. Indeed, with the exception that the outer form of the main design of both marks is circular, and that the narrow ring and cup-shaped base of the one and the disk and rectangular base of the other are orange-colored, there is no resemblance whatever between the symbols in issue. In our opinion only a lack of caution amounting to clean-cut carelessness on the part of a purchaser would cause the mark of the applicant to be mistaken for that of the opposer, and we must therefore hold that the opposition was properly dismissed.

The decision from which this appeal was taken is affirmed.

Affirmed.