RAND MCNALLY & COMPANY, APPELLANT,

v.

CHRISTMAS CLUB, A CORPORATION, APPELLEE

It is well settled that the title of a magazine is descriptive if it describes the contents of the magazine Crime Confessions, Inc., v. Fawcett Publications, Inc., 139 F. 2d 499, 31 C.C.P.A., Patents, 760; Warner Publications v. Popular Publications, 2 Cir., 87 F. 2d 913; McGraw-Hill Publication Co., Inc., v. American Aviation Associates, 73 App. D.C. 131, 117 F. 2d 293.

However, while the magazine here involved contains matter advertising Christmas Clubs, such matter forms a relatively small part of the whole. More than eighty per cent of the magazine is devoted to editorials, jokes, and quotations derived from various sources.

Accordingly, we are of the opinion that the words “Christmas Club” cannot properly be said to be descriptive of the actual contents of the magazine in issue. It is contended by appellant, however, .that the sole purpose of the magazine is to advertise or promote appellee’s Christmas Club business and that a title descriptive of the purpose of the goods is descriptive of the goods themselves so far as the trademark statutes are concerned. In support of that contention appellant cites In re W.

A. Sheaffer Pen Co., 158 F. 2d 390, 391, 34 C.C.P.A., Patents, 771, in which Fineline was held to be descriptive of pencils adapted to produce fine lines. In that case the court said:

“Words which are merely descriptive of the goods with which they are used, or the character or quality thereof, or the purpose for which they are used, shall not be registered under the mandate of the statute, for the reason that any one is entitled to use such words in describing the goods which he offers for sale.”

Appellant also relies on Andrew J. McPartland, Inc., v. Montgomery Ward & Co., Inc., 164 F. 2d 603, 35 C.C.P.A., Patents, 802, in which, Kwixtart was held to be descriptive of a storage battery designed to give a quick start to an automobile engine.

It is to be noted that in each of the cited cases the mark was descriptive of an effect produced directly by the goods to which it was applied. In the instant case, on the other hand, the magazine obviously does not produce a Christmas Club but, at most, serves to advertise the business of appellee in connection with such clubs.

The situation here presented is generally similar to that in Bonne Bell, Inc., v. Lanolin Plus Cosmetics, Inc., 202 F. 2d 790, 791, 40 C.C.P.A., Patents, 891, which involved the trademark “Plus 30” for a cosmetic cream. It was held by the Patent Office tribunals that the mark was descriptive since it “ ‘would indicate to purchasers that the product is particularly designed for use by women over thirty years of age.’ ” This court, however, reversed that holding as “going far beyond even a most liberal expansion of the statute” with respect to descriptiveness.

Another case in point is Triangle Publications v. Rohrlich, 167 F. 2d 969, in which it was held by the United States Court of Appeals, Second Circuit, that the' trademark “Seventeen” was not descriptive of a magazine devoted to teen-age fashions.

The distinction between trademarks which are descriptive of the goods to which they are applied, and those which are mere¡y suggestive, is not always easy make, and depends to a great extent on the circumstances of the particular case involved. In the instant case “Christmas Club” clearly is not descriptive of the physical properties of appellee’s magazine, and, in our opinion, is not descriptive of the contents thereof and, while there is a certain relationship between the words “Christmas Club” and the manner in which the magazine is used by appellee, we consider that relationship to be too remote to justify a holding that the words are descriptive.

We are, moreover, in agreement the finding of the Assistant Commissioner that the record does not show facts from which it can be properly presumed that appellant has been or win be damaged by the registration here involved. The house attorney for appellant, James M. Votova, testified that appellant did not publish any periodical its Christmas Club department, and there is nothing to show that it intends to do so in the future. Appellant and appellee, therefore, are not in competition so far as the publication of any periodical is concerned.

Moreover, as pointed out by the Assistant Commissioner, appellee’s trademark cannot prevent appellant from publishing a periodical or from using the words “Christmas Club” therein in their ordinary, non-trademark sense. The involved registration would at most merely prevent the use of “Christmas Club” as the title of such a periodical, and upon the facts presented it is not thought that this could result in damage to appellant, In that condition it seems proper to note that prior to the filing of appellant’s petition for cancelation, appellee’s registration had been in effect for more than twenty-five years, and that appellant had had actual notice of the existing registration for approximately thirteen or fourteen years without any damage having been alleged.

The decision of the Assistant Commissioner is affirmed.

Affirmed.

JACKSON, Judge, retired, recalled to participate herein in place of COLE, Judge, absent because of illness.