BAILEY, Associate Justice.
I agree with the Commissioner of Patents in his conclusion that while the ink from a fountain pen does not flow on the top surface of the nib, the ink on the top surface of the ordinary nib does flow on the top surface, and the plating of that surface does aid in the flow of the ink. I may add that I do not agree with the plaintiff's contention that corrosion of the nib is advantageous.
This being so, I do not think that a trade-mark should be registered that is based merely on the plating in a particular color of a particular portion of the nib, where the plating with the particular material serves a useful purpose in itself. The trade-mark sought by the plaintiff is not limited to use on nibs for fountain pens.
The applied for trade-mark on the top surface of a fountain pen nib indicates to the pen purchasing public that such fountain pen was manufactured and sold by the W.A. Sheaffer Pen Company of Fort Madison, Iowa.
While the placing of applicant's (plaintiff's) trade-mark on the top surface of a fountain pen nib does not aid the flow of ink or promote the utility thereof and the removal of said trade-mark from a fountain pen nib does not result in a decrease in the utility of the fountain pen nib, this does not establish the registrability of the here applied for mark as shown and described in plaintiff's application, since the statement in said application as to the goods upon which said mark is used is not limited to fountain pens.
Since the here applied for mark includes the application thereof by plating of a particular color on a particular portion of a dip, or ordinary pen nib, whereon such plating is held to serve a usual or useful purpose in itself and is not limited to use on nibs of fountain pens whereon the plating of the mark is of no utility, the trade-mark as now applied for by the plaintiff is not registrable.
Plaintiff is not entitled to the registration sought in its said application Serial No. 316,385 for the articles as now defined in that application.
The bill of complaint should be dismissed.
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