My Own Co. v. Janszen Grocery Co. , 16 F.2d 544 ( 1926 )

VAN ORSDEL, Associate Justice.

This is an appeal from the decision of the Commissioner of Patents, sustaining the notice of opposition filed by appellee, the Janszen Grocery Company, to the application of appellant, My Own Company, for the registration of the trade-mark “My Own” for food products, condiments, canned fruits and vegetables, canned soups, and canned condensed and evaporated milk.

It is conceded by the opposer that the mark has been used in interstate commerce by appellant company since May 29, 1922; but the opposer offered evidence tending to establish its use of “My Own” as a trademark for canned goods since the year 1900. The case turns upon the sufficiency of the testimony to establish prior use by appellee company during the period named.

It is unnecessary for us to review the testimony of the witnesses on this point. It was'held sufficient by the various tribunals below to conclusively establish prior use of the mark by appellee company. A careful review of the record convinces us that this conclusion is correct. To hold otherwise would require us to discredit a number of witnesses, whose testimony we.think is entitled to belief. In this view of the case, we are convinced that the Commissioner was right in rejecting the registration of appellant’s mark.

The decision of the Commissioner is affirmed.