
    NESTLE & ANGLO-SWISS CONDENSED MILK COMPANY v. HOLLAND FOOD CORPORATION.
    Trademarks; Similarity of Marks.
    A mark applied as a trademark to condensed milk, consisting of the word “Milkman,” together with a picture including the figures of a man and woman in Dutch attire, and a panel having a figure of a man and two cows in the background, the words “Condensed Milk” being printed over the figure, and the words “Milkman Brand” beneath, is so similar to a registered trademark applied to the same product as to be likely to result in confusion in trade, where the latter mark consists of a label on a container which shows the name of the registrant at the top, followed by the words “Milkmaid Brand,” and beneath a figure representing a milkmaid with a pail in her hand and one on her head, and at the bottom of the figure in large type the words “Condensed Milk.”
    No. 1036.
    Patent Appeals.
    Submitted May 10, 1916.
    Decided May 29, 1916.
    Hearing on appeal from decision of the Commissioner of Patents registering a trademark over an opposition.
    
      Reversed.
    
    The facts are stated in the opinion.
    
      Mr. W. D. Edmonds for the appellants.
    
      Mr. John W. Crandall for the appellee.
   Mr. Chief Justice Shepard

delivered the opinion of the Court:

The Holland Pood Corporation applied for registration- of a trademark for condensed milk.

The mark consists of the word “Milkman,” together with a picture including the figures of a man and woman in Dutch attire, and a panel having a figure of a man and two cows in the background. The figure of the man in Dutch costume is dressed in the garb of the natives of Vollendam and other of the villages of Holland, which, in the picture, is very much like the dress of the woman. Over the figure is printed in large type “Condensed Milk,” underneath are the words “Milkman Brand” in like large type.

The registration was opposed by the Nestle & Anglo-Swiss Condensed Milk Company and Borden’s Condensed Milk Company. Borden’s Condensed Milk Company is the exclusive agent and representative of the Nestle & Anglo-Swiss Condensed Milk Company in the Hnited States, and has the exclusive right to the trademark, which was adopted and used in 1870, and has been in continuous use since in the Hnited States.

The label showing the trademark was for condensed milk, which is in large type, has over it the words “Milkmaid Brand,” which is the trademark. This mark was registered in the United States Patent Office April 3, 1900. Another registration was had February 12, 1907.

The mark as used now is a label on the container, which shows the word “Borden’s” in conspicuous type at the top, the words “Milkmaid Brand” in larger type following. Underneath there was a figure representing a milkmaid with a pail in her hand and one on her head. At the bottom of the figure in large type are the words “Condensed Milk.”

The applicant, Holland Food Corporation, sets up the date of its use in the United States commencing December 20, 1913.

An agreed statement of facts by the parties shows that the Milkman Brand has been used in Switzerland and England and other foreign countries since 1879 by the Holland Food Corporation and its predecessor, it. Lehmann & Company, and the exclusive right to use the trademark has been assigned to the Holland Food Corporation, October 21, 1914.

This evidence is immaterial to the issue here.

We are of the opinion that there is such similarity in the marks as is likely to produce confusion in trade, and that the application should have been denied.

The decision is reversed, and this decision will be certified by the clerk to the Commissioner of Patents. Reversed.  