
    181 F. (2d) 221; 85 USPQ 281
    In re National Recreation Association, Inc.
    (No. 5691)
    United States Court of Customs and Patent Appeals,
    April 3, 1950
    
      Truman 8. Safford (Curtis, Morris & Safford, Richard K. Stevens, and Davidson O. Miller of counsel) for appellant. ■
    
      E. L. Reynolds ('Walter J. Derenberg of counsel) for the Commissioner of Patents.
    [Oral argument March 8,1950, by Mr. Safford and Mr. Derenberg]
    Before Garrett, Chief Judge, and Jackson, O’Connell, and Johnson, Associate Judges
   Jackson, Judge,

delivered the opinion of the court:

The Commissioner of Patents affirmed a decision of the Examiner of Trade-Marks, 77 USPQ 632, refusing to register appellant’s trademark “The Playground” for a weekly magazine devoted to “playground supervision” on the ground that the mark is descriptive of the goods. Thereupon appellant appealed to this court.

It appears that appellant is the owner of a registered mark “Playground and Becreation” for a monthly magazine, and also that the-mark sought here to be registered had formerly been registered by appellant, which registration had expired. Appellant contends that the involved mark is registrable under the Trade-Mark Act of 1905,. basing its contention upon ownership of said registrations which had been issued under that act, and further that the mark is merely suggestive rather than descriptive of the goods to which it is applied.

It was observed by the examiner that the involved mark cannot be registered under the 1905 act for the reason that decisions rendered subsequent to the allowance of appellant’s prior registration have been modified with respect to registration of titles of publications which are descriptive of the subject matter therein. He cited the decision in the case of McGraw-Hill Publishing Company, Inc. v. American Aviation Associates, Inc., et al., 73 App. D. C. 131, 117 F. (2d) 293, 47 USPQ 494. In that case it was held that the trade-mark “AVIATION” is descriptive and not arbitrary or fanciful. It was said there, “It is difficult to conceive of a term that would be more descriptive of the contents of the plaintiff’s magazine.” The court brushed aside the contention that a descriptive word must designate some physical characteristic of the goods to which it is applied and categorically held that magazines may be described by their subject matter.

The principle announced in that case was followed by the Commissioner of Patents in the case of Ex parte Distribution and Warehousing Publications, Inc., 61 USPQ 233. There the commissioner stated that the change of practice adopted by the Patent Office after the decision in the McGraw-Hill case, supra, would meet the approval of this court, as indicated in the case of Crime Confessions, Inc. v. Fawcett Publications, Inc., 31 C. C. P. A. (Patents) 760, 139 F. (2d) 499, 60 USPQ 193. The descriptive issue was not involved in that case, but we stated in our decision there as follows:

It would seem obvious to all that the terms “CRIME CONFESSIONS” and “TRUE CONFESSIONS” are descriptive. While we cannot pass upon that question in this kind of proceeding it seems proper to suggest that since the registration of purely descriptive trade-marks is clearly a violation of the law, it would be better for the Patent Office to comply with the law rather than to follow the precedents that have been followed throughout the years.

In view of the decisions in the McGraw-Hill case, supra, and Crime Confessions, Inc. case supra, the Patent Office has since undeviatingly refused registrations of any periodical title as closely descriptive of its contents as “TKUE CONFESSIONS” and “AVIATION” were stated to be. The examiner considered the registrability of the involved mark under the practice as established in the McGraw-Hill case, supra.

The Commissioner of Patents adopted the ground of refusal appearing in the decision of the Examiner of Trade-Marks. Both the examiner and the commissioner rejected the contention of counsel for appellant that the Trade-Mark Act of 1946 contemplates registration of marks such as that sought to be registered here.

We have no doubt that the mark sought to be registered is descriptive of the subject matter contained in the magazine to which it is applied, and therefore not registrable.

With, respect to tbe contention by counsel for appellant that we should give effect “to tbe policy recognized by Congress in tbe 1946 Act,” it is clear from tbe very wording of that act that it is immaterial bere.

Section 47 (a) of tbe Trade-mark Act of 1946 provides as follows:

Sec. 47 (a). Applications pending on effective date of Act
All applications for registration pending in tbe Patent Office at tbe effective date of tbis Act may be amended, if practicable, to bring them under tbe provisions of this Act. Tbe prosecution of such applications so amended and tbe grant of registrations thereon shall be proceeded with in accordance with tbe provisions of tbis Act.- If such amendments are not made, tbe prosecution of said applications shall be proceeded with and registrations thereon granted in accordance with the Acts under which said applications were filed, and said Acts are hereby continued in force to tbis extent and for this purpose only, notwithstanding the foregoing general repeal thereof.

Appellant has not sought to bring himself within the provisions of that section by amendment, and therefore his application must be considered in the light of the Trade-Mark Act of 1905.

The decision of the Commissioner of Patents is affirmed.  