
    47 F. (2d) 375
    Celanese Corporation of America v. Vanity Fair Silk Mills
    (No. 2612)
    
      United States Court of Customs and Patent Appeals,
    February 25, 1931
    
      Baldwin & Wight (Frank A Bower, Isadore Seltzer and Chas. W. Levinson of counsel) for appellant.
    
      Hasan, Femoick <C- Lawrence (Edtoard T. Femoiok, Edward Q-. Femoick, and Charles R. Fenwiok of counsel) for appellee.
    [Oral argument January 14, 1931, by Mr. Bower and Mr. Edward G. Fenwick]
    Before Graham, Presiding Judge, and Bland, Hatfield, Garrett, and Lenroot, Associate Judges
   Hatfield, Judge,

delivered the opinion of the court:

This is an appeal in a trade-mark opposition proceeding from the decision of the Commissioner of Patents.

It appears from the record that appellee filed an application for the registration of the trade-mark Silkenese ” for use on “ Knitted, netted, and textile fabrics ” composed of “ Silk and Bemberg Fiber.” Thereafter, a notice of opposition was filed by appellant, in which it was claimed that appellant was the owner of the trade-mark Celanese ”; that it had used its mark on its goods for many years prior to the use by appellee of its mark; that the goods of the parties possessed the same descriptive properties; that the involved marks were confusingly similar; and that appellant would be injured by the registration of appellee’s mark.

It appearing from the testimony submitted by appellee that it had not used the trade-mark “ Silkenese ” on the goods set forth in its application for registration, counsel for appellee, on the hearing before the examiner of interferences, stated that appellee did not intend to contest the opposition.

Thereupon, the examiner of interferences sustained the opposition and held that appellee was not entitled to register its trademark.

Appellee appealed to the Commissioner of Patents, who, after stating the facts substantially as hereinbefore recited, dismissed the opposition on the ground that the involved trade-marks were not confusingly similar. He held, however, that, as appellee had not used the trade-mark “ Silkenese ” on the goods described in its application, it was not entitled to have the mark registered.

It is claimed by appellant that the commissioner erred in dismissing the opposition.

Although, we do not' mean to be understood as holding that, in all cases of this character, the opposition should be sustained, nevertheless, in view of the fact that this proceeding was.consolidated in the Patent Office with the case of the Gelanese Corf oration of America v. Vanity Fair Silk Mills, Opposition No. 8349, involving the same parties, the same trade-marks, and goods of the same descriptive properties, and, as the parties presented such evidence as they desired relative to the issues raised by the notice of opposition and the answer thereto, including the similarity of their goods and the involved trade-marks, we are of opinion that the parties were entitled to a decision on the merits of the case. Accordingly, on the authority of our decision in the case of Celanese Corporation of America v. Vanity Fair Silk Mills, Opposition No. 8349, 18 C. C. P. A. (Patents) 958, 47 F. (2d) 373, the decision of the Commissioner of Patents is modified, being affirmed in so far as it holds that appellee is not entitled to have its trade-mark registered, and in all other respects reversed.  