Findings of Fact.
1. This is an action under R.S. § 4915, 35 U.S.C.A. § 63, in which it was sought to have the Court find that plaintiff, American Bio-Chemical Corporation, is entitled to the issuance of a certificate of rejistration of the words "Vita-Seltzer" as a trade-mark for an "Effervescent Preparation in Tablet or Powder Form for Upset Stomach, Headaches and Similar Ailments".
2. Plaintiff's application for registration of the mark here in question was filed on October 6, 1938, and alleges continuous use of the mark since June 24, 1938.
3. The intervenor-defendant, Miles Laboratories, Inc., is the owner of trademark Registration No. 283,831, which was registered on June 9, 1931, for the words "Alka-Seltzer" as a trade-mark for an "Anti-Acid Effervescent Preparation".
4. The goods of the plaintiff are of the same descriptive properties as the goods of the intervenor-defendant.
5. The plaintiff's mark Vita-Seltzer so nearly resembles the registered trade-mark Alka-Seltzer of the intervenor-defendant as to be likely to cause confusion or mistake in the mind of the public and to deceive purchasers.
Conclusions of Law.
1. Plaintiff is not entitled to registration of the words "Vita-Seltzer" as a trademark for an effervescent preparation in tablet or powder form for upset stomach, headaches and similar ailments.
2. The complaint should be dismissed.
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