
    CANTON CULVERT & SILO COMPANY v. CONSOLIDATED CAR-HEATING COMPANY.
    Trademarks; Prior Use.
    1. The owner of a trademark will not be hampered or embarrassed in the legitimate extension of the business by the registration of the mark to another. (Following Re Braadlcmd, 37 App. D. C. 602; 2V. Wolf & 
      
      Sons v. Lord & Taylor, 41 App. D. C. 514; Simplex Electric Heating Co. y. Gold Gar Heating £ Lighting Co. 43 App. D. C. 28; Fishbech Soap Co. v. Kleeno Mfg. Co. ante, 6.)
    2. Registration of the word “Nokoro,” as a trademark for electrical resistances, electrical apparatus, etc., should be denied upon the opposition of one who has made prior use of the word “No-Co-Ro,” as a trademark in connection with sheet metal, which is adapted to be used for electrical resistances.
    No. 991.
    Patent Appeals.
    Submitted January 12, 1916.
    Decided March 6, 1916.
    Hearing on an appeal from a decision of the Commissioner of Patents dismissing an opposition to the registration of a word as a trademark.
    
      Reversed.
    
    The facts are stated in the opinion.
    
      Mr. Harry Frease for the appellant.
    
      Mr. William S. Hodges and Mr. Edward M. Bentley for the appellee.
   Mr. Justice Robb

delivered the opinion of the Court:

This appeal is from a decision of an Assistant Commissioner of Patents dismissing appellant’s opposition to the registration by the appellee, Consolidated Oar-Heating Company, of the word “Nokoro” as a trademark for “electrical resistances, electrical apparatus,” etc.

In its application for registration appellee alleges that it has used this mark since July 1, 1911. In its notice of opposition appellant, Canton Culvert & Silo Company, alleges that it has used the words “No-Co-Ro” since February, 1909, as a trademark in connection with the sale of sheet metal; that this sheet metal “is adapted to be used as a supply for electrical apparatus and machines, and is particularly adapted to be used for electrical resistances.” The notice contains the usual averments that confusion in trade would be likely to result from the registration of substantially tbe same mark by appellee. Appellee filed a motion to dismiss tbis opposition, which motion was granted and tbis appeal followed.

It of course is not disputed that tbe two marks are substantially identical. Tbe tribunals of tbe Patent Office appear to have accepted tbe contention of appellee tbat an electrical resistance is an organized apparatus, as a reostat, and hence tbat tbe so-called “raw material” of appellant does not respond to tbe term. We cannot accept tbis view. In tbe notice of opposition, tbe averments of which must be accepted as true for tbe purposes of tbis appeal, it is stated tbat appellant’s sheet metal “is particularly adapted to be used for electrical resistances:” It is familiar doctrine in this court tbat tbe owner of a trademark will not be hampered or embarrassed in tbe legitimate extension of his business by tbe registration of tbe mark to another. Re Braadland, 37 App. D. C. 602; N. Wolf & Sons v. Lord & Taylor, 41 App. D. C. 514; Simplex Electric Heating Co. v. Gold Car Heating & Lighting Co. 43 App. D. C. 28; Fishbeck Soap Co. v. Kleeno Mfg. Co. ante, 6. Appellant was tbe first to adopt tbis mark, and has established a trade reputation in connection therewith. There was no legitimate reason or excuse for its adoption by appellee upon tbis line of goods, and we are not disposed to indulge in refinements where such a manifest appropriation appears.

Tbe decision is reversed and the opposition sustained.

Reversed.  