
    276 F. 2d 415; 125 USPQ 350
    The Squirt Co. v. T. C. Evans (The Sprite Corp., Assignee, Substituted)
    (No. 6530)
    United States Court of Customs and Patent Appeals,
    March 30, 1960
    
      Beehler & Shanahan (Edmond F. Shanahan of counsel) for appellant.
    
      Julius JR. Lunsford, Jr., for appellee.
    [Oral argument March 1, 1960, by Mr. Shanahan and Mr. Lunsford, Jr.]
    Before Worley, Chief Judge, and Rich, Martin, and Smith, Associate Judges, and Judge William H. Kirkpatrick 
    
    
      
       United States Senior District Judge for the Eastern District of Pennsylvania, designated to participate in place of Judge O’Connell, pursuant to provisions of section 294(d), Title 28, United States Code.
    
   Rich, Judge,

delivered the opinion of the court:

These are consolidated trademark oppositions, Nos. 35,343 and 35,453, wherein appellant appeals from the decision of Examiner-in-Chief Federico, acting for the Commissioner of Patents, affirming the dismissal of the oppositions by the Examiner of Interferences.

Appellee filed application serial No. 681,501 February 11, 1955, to register the word mark “sprite” for “nonalcoholic, maltless soft drinks, namely, fruit flavored drinks, root beer, and ginger ale.” On the same day he filed application serial No. 681,502 to register for the same goods the same mark displayed in an oval space on a background of diagonal stripes. The specimens filed with both applications show a soft drink bottle of ordinary shape bearing both marks.

Opposer is the admitted prior user and prior registrant of the trademark “Squirt” for soft drinks which it has registered several different times in different forms. Opposer took testimony from which it appears that “Squirt” is used only on a drink of grapefruit flavor. Opposer also has a registration, No. 401,117, of a caricature of a small boy and has used this mark on its bottles and packages with the word mark. Both the sales of “Squirt” and the advertising expenditures to promote them have been large and the product is presumably widely known to those elements of the population addicted to soft drink.

After carefully considering the record and the arguments of the parties, we are unable to conclude that the concurring decisions below are in error. Having made it clear that we are aware of the extent of opposer’s publicity and sales we have nothing further to say in support of our decision that has not already been clearly, competently and completely said in the opinion of the Examiner-in-Chief. That opinion has been published at 119 USPQ 102 and 49 T.M. Eep. 141 and it would serve no purpose to write or publish anything more.

Compare our decision in The Squirt Co. v. Pola-Rona, Inc., 43 CCPA 764, 229 F. 2d 463, 108 USPQ 333, wherein the dismissal of the present opposer’s opposition to the registration of “Splurge” for soft drinks was sustained.

The decision dismissing the oppositions is affirmed.  