
    In re W. T. GRANT CO.
    Court of Appeals of District of Columbia.
    Submitted Nov. 14, 1928.
    Decided Dec. 3, 1928.
    No. 2088.
    James Atkins, of Washington, D. C., for applicant.
    T. A. Hostetler, of Washington, D. C., for Commissioner of Patents.
    Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.
   MARTIN, Chief Justice.

This is an ap-peal from a decision of the Commissioner of Patents affirming the action of the examiner of trade-marks in 'denying registration of appellant’s alleged trade-mark.

The trade-mark for which registration is sought is for use upon hand drills, and is described by the applicant as follows: “The trade-mark consists in cploring the outer and inner faces of the grinding wheel yellow; one of these faces as shown in the drawing is lined to indicate such color.”

The ground on which registration was refused is that the alleged mark is merely a solid color applied to part of the article, and is primarily an ornamental feature. of the device and not significant of origin or ownership. It was stated by the Commissioner that mere color cannot function as a trademark; that it is common practice for manufacturers and traders to color their articles of trade, or parts thereof, any and all colors which judgment or fancy may dictate, for purpose of ornamentation; that the colors in such eases do not suggest to the public the idea of origin or ownership, which is the sole purpose of a trade-mark; and that it is only when colors are so impressed in a design as to suggest to the public that they are used to distinguish the goods of one manufacturer or owner from like goods having a different origin or ownership, that they may be said to function as trade-marks.

In our opinion the Commissioner’s conclusions are correct. In the ease of In re Waterman Co., 34 App. D. C. 185, 18 Ann. Cas. 1033, this court considered an application for the registration of a color trademark for a fountain pen, which gave the color of the feed bar as red, and .the portion of the reservoir or handle adjacent to the feed bar as black. Registration was denied upon the ground that a trade-mark cannot be acquired in the use of color not connected with some symbol or design, citing Re Hanson’s TradeMark, L. R. 37 Ch. Div. 112; A. Leschen & Sons Rope Co. v. Broderick & B. Rope Co., 201 U. S. 166, 26 S. Ct. 425, 50 L. Ed. 710; and Diamond Match Co. v. Saginaw Match Co. (C. C. A.) 142 F. 727.

We deem it sufficient to say that in our opinion the instant ease is governed by the decision in the Waterman Case. The decision of the Commissioner of Patents is accordingly affirmed.  