
    69 USPQ 107; 154 F. (2d) 155
    McKesson & Robbins, Inc. v. The Vad Corporation
    (No. 5103)
    United States Court of Customs and Patent Appeals,
    March 6, 1946
    
      Samuel Servicie for appellant.
    
      Mode £ Blum (Asher Blum, Hugo Mode, Alex Friedman and .Charles B. Allerv of counsel) for appellee. . . , .
    [Oral argument January 8, 1946, by Mr. Herrick: and Mr.. Allen]
    Before Garrett, Presiding Judge, and Bland, Hatfield, Jackson, and O’Connell,. Associate Judges
   Garrett, Presiding Judge,

delivered the opinion of the court:

This is an appeal from the decision of the Commissioner of Patents (speaking through the First Assistant Commissioner), 62 USPQ 386,. affirming that of the Examiner of Trade-Mark Interferences dismissing appellant’s notice of opposition to appellee’s application for registration of the notation “Vad,” printed with fanciful type, as a trade-mark for use on lipsticks and cleansing creams, and holding-appellee entitled to the registration sought. • .

Appellee’s application was filed in the Patent Office October 21, 1942, use of the mark being therein alleged “since October 15, 1942.”' Notice of the application was published in the Official Gazette of March 2,1943, and appellant filed notice of opposition March 31,1943.

In the notice of opposition appellant alleged ownership and use of' a registered mark consisting of the word “Vadeo,” applied as a trademark to certain articles of merchandise, asserted to be of the same-descriptive properties as lipsticks and cleansing creams. The registration so relied upon is registration No. 120,648, a “soft copy” of' which was filed with, and “as a part” of, the notice.

Appellant specifically alleged—

2. That. Opposer secured registration of said mark in the U. S. Patent Office on Keb. 19, 1918, per certificate No. 120,648, a soft copy of which is filed herewith and as a part hereof; that said registration is now owned by Opposer, and is in full force and effect, having been renewed in 1938.
3. That Applicant’s alleged. Trade-Marlc consists of the word “Vad,” which is ■so similar to Opposer’s Trade-Mark as to be likely to cause confusion in the minds ■of the public, and to deceive purchasers. Opposer states that the goods upon which Applicant alleges his mark to be applied have the same descriptive properties as Opposer’s goods; hence that Opposer would be injured by its registration. . '

In its’ answer to the notice of opposition appellee stated inter alia:

Applicant, The Vad Corporatipn, answering the notice of opposition herein, ■denies each and every allegation in said notice of opposition except as hereinafter admitted or specifically avoided.
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2. It admits the issuance of .Reg. No. 120,648 on February 19, 1918, but is without any knowledge as to the renewal thereof or the ownership by opposer. •
3. It denies each and every allegation contained in paragraph 3 of the notice ■of opposition.

Appellee thus placed in issue the question of appellant’s ■ownership of the -mank “Vadeo” and it became incumbent upon appeh lant toprovtesa-me. So fat as disclosed by the record, appellant made no effort to make such proof. It took no testimony, nor did it introduce any evidence of any character. . ■

The'copy-of registration No. 120,648 filed with, and “as a part” of, the notice .of opposition discloses that the certificate of registration was issued :to -“Van-Antwerp’s Drug Corporation,. Inc., of Mobile, Alabama,” February 19,1918. Upon the copy is stamped “RENEWED.” There is-.nothing on the. document to indicate when it was renewed, nor at whose instance it was renewed.

Furthermore, there is no evidence in the record that appellant ever acquired ownership of, of any interest in the business of, Van Antwerp’s Drug Corporation, Inc. It is not even alleged in its notice of opposition" that it did so. 1 In fact, it made no reference whatsoever to the Van Antwerp’s Drug Corporation, Inc., in its notice of opposition.

Upon the state of the record so outlined, the Examiner of TradeMark Interferences held that appellant had not established a right to oppose appellee’s registration, saying, inter alia:

Tbe Opposer [appellant bere] lias filed an official copy of the registration pleaded in tlie notice of opposition; however, it appears that this registration issued to a stranger to! this proceeding and no proofs have been submitted in support of opposer’s claim of ownership thereof. The registration, accordingly, is incompetent as evidence of use or ownership of the mark by the opposer and in the absence of any other evidence upon that issue, the examiner is in agreement with the applicant that- the opposer lacks the right to herein contest the question of likelihood of confusion in trade.

The commissioner affirmed the foregoing decision, saying, inter alia:

The registration pleaded by opposer was issued to Van Antwerp’s Drug Corporation, Inc. Because opposer failed to prove its alleged ownership of the registration, or of the registered mark, the examiner of interferences very properly held “tliat the opposer lacks the right to herein contest the question of likelihood of confusion in trade;” and so dismissed the opposition and “adjudged that the applicant is entitled to the registration for which it has made application.”

It is obvious that the decisions of the respective tribunals of the Patent Office, holding that appellant had failed to establish any right' to oppose appellee’s application for registration and, for that reason, dismissing appellant’s notice of opposition,-were correct.

The decision of the commissioner' is affirmed.  