UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
June 26, 1958
MARCALUS MANUFACTURING COMPANY, INC., APPELLANT
ROBERT C. WATSON, COMMISSIONER OF PATENTS, APPELLEE. 1958.CDC.118 DATE DECIDED: JUNE 26, 1958.
Before FAHY, DANAHER and BURGER, Circuit Judges.
UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT.
Appellant sold paper products in wrappers which bore a maroon oval with the registered name "Marcal" and other words superimposed in the oval in white letters. This case arose when appellant sought to register the maroon oval by itself, without any wording. *fn1 The Patent Office refused registration, and appellant filed an action in the District Court under 15 U.S.C. § 1071, 15 U.S.C.A. § 1071 and 35 U.S.C. § 145. The District Court dismissed the complaint, concluding that the various maroon ovals by themselves were not in fact distinguishing marks for appellant's products.
Appellant argues that the statute does not allow refusal of registration of a mark on account of its nature, where the mark is a means whereby the goods "may be distinguished" from the goods of others. *fn2 It is, of course, a question of fact whether a given mark is a means whereby the applicant's goods "may be" distinguished from the goods of others, and in the case of a distinctive or unique mark this quality may readily appear and thus be presumed. But where the mark consists solely of a common basic shape, such as an oval, *fn3 we think it not proper to presume that such a mark is a means whereby the goods may be distinguished and thus entitled to be registered. The District Court properly received evidence offered by appellant to show the public had in fact come to accept the oval by itself as a symbol of appellant's goods, and we think there was no error in concluding that the evidence was insufficient. *fn4 We need not reach or decide what will be appellant's rights if he re-applies for registration and submits more persuasive evidence to overcome the presumption that a non-distinctive oval by itself is not a mark whereby appellant's "goods . . . may be distinguished." *fn5