On the evidence of these misrepresentations, the Court of Appeals reversed the decision of the lower court, and dismissed the complaint.
The doctrine of law that misrepresentation is a bar to protection of a trade-mark or a trade-name has been clearly established by many decisions similar to the above.
A Trade-Mark Must Not Be Similar to a Trade-Mark previously Registered for the same Class of Merchandise
When a pictorial or symbolic device has been registered, registration is refused to any other mark, for the same class of merchandise, composed of words describing the pictorial or symbolic device already registered. Or, vice versa, if the wording has been registered first, a symbol with the same meaning will be denied registration. For example:—
A trade-mark consisting of the conventional representation of a fox, unaccompanied by lettering, would not be a valid trade-mark if the word "Fox" had already been registered for the same class of merchandise. In either case the goods would be called the "Fox" brand.
The practice is to refuse registration of a mark in cases where, although there may be no literal similarity, there is a similarity in ideas.
"Edelweiss-Maltine" was refused registration on the ground that it conflicted with "Maltine", a trade-mark already registered for goods of the same description.
"Certosa" was refused registration as a trade-mark for flour on account of its similarity to the word "Ceresota" already registered.
The Patent Office has held that in an interference between two trade-marks, one consisting of the pictorial representation of a bouquet of flowers, and the other consisting of the word "Bouquet", applied to the same class of goods, that the marks were identical in meaning.