
    ROYAL MILLING COMPANY v. J. F. IMBS MILLING COMPANY.
    Trademarks; Prior Use.
    Registration of the word “Rex” as a trademark for flour is properly refused upon the opposition of a firm claiming a prior use of the word as applied to flour for nearly forty years, where it appears that the use was begun by the senior member of the opposing firm and continued by successive firms of which he remained the senior member, and that the word was originally used on flour made from soft wheat and afterwards on flour made from hard wheat, and where it also appears that all such flour was of the same superior grade, and there was no misrepresentation in the use of the mark.
    Note.' — On the effect of false representations extrinsic to the trademark on the right to protection against infringement of same, see notes in 12 L.R.A. (N.S.) 1201, and 23 L.R.A.(N.S.) 1151.
    No. 990.
    Patent Appeals.
    Submitted November 10, 1915.
    Decided November 29, 1915.
    Hearing on an appeal from a decision of tbe Commissioner of Patents, sustaining an opposition to an application for the registration of a trademark.
    
      Affirmed.
    
    The facts are stated in the opinion.
    
      Mr. Frank A. Whiteley and Mr. Bruce 8. Bllioti for the appellant.
    
      Mr. Paul Bakewell for the appellee.
   Mr. Chief Justice Shepard

delivered the opinion of the Court:

The Royal Milling Company filed an application October 18, 1911, for the registration of the word “Rex” as a trademark for flour. The mark consisted of a diamond-shaped figure upon which appears in large script type the word “Rex.” Below the diamond-shaped figure is a scroll upon which are the words “Rex Is King.” The word “Rex” is the dominant feature of the mark, and is all that is applied for.

The applicant claims a certificate of registration granted to the Royal Milling Company October 3, 1893.

The opposer, the J. E. Imbs Milling Company, claims that it and its predecessors have used the word “Rex” as a trademark for flour continuously since 1873. The mark was adopted originally by J. E. Imbs, who is the senior member of the firm opposing registration.

The proof shows that the mark was adopted and used by J. E.'Imbs in 1873 as a trademark for flour, and has been continuously used since that time by successive firms of which T. E. Imbs was the senior member.

Tie is the senior member of the J. E. Imbs Milling Company.

The proof establishes satisfactorily the use of the mark upon the flour packed in barrels- since said date.

The Examiner of Interference and the Commission, on appeal, rendered decisions sustaining the opposition, from which there has been an appeal to this court.

The applicant contends that the word “Rex” was fraudulently used by the opponent, basing its contention on the fact that “Rex” was originally used on flour made from soft wheat, but is now used on flour made from hard wheat.

As stated by the Commissioner, it is a well-known fact "that twenty-five or thirty years ago hard wheat began to be raised in this country. Since that time it has gone into extensive use, and while the flour made from hard wheat may be different from that made from soft wheat, Imbs’ record shows that “Rex” was always used upon good flour, and always on the same grade of flour, and he held that the trademark is not to be vitiated by a change in the species of wheat used, any more than it would be vitiated by an important change of process in the making of flour.

It appears that the Rex flour is of the same grade, of the best flour, and there has been no misrepresentation in its use.

We agree with the Commissioner that no fraud has been shown, and his decision is affirmed.

This decision will be certified by the clerk to the Commissioner of Patents. Affirmed.  