#### MARSH CAPRON MFG. CO. (EQUIPMENT CORPORATION OF AMERICA, Substituted for Applicant) v. BATES MACHINE & TRACTOR CO.

(Court of Appeals of District of Columbia.

Submitted March 12, 1923.

Decided May 7, 1923).

No. 1569.

1. Trade-marks and trade-names and unfair competition ©=321—Tractors for agriculture and excavation and those for shop work have same descriptive properties.

Tractors manufactured by opposer, who specialized in tractors of the crawler type, used principally in agricultural work, but who manufactured some tractors mounted on wheels, have the same descriptive properties as tractors manufactured by the applicant, which were of the wheel type and used principally on hard surfaces in and about manufacturing plants and railroad depots.

2. Trade-marks and trade-names and unfair competition ©=2I—“Steel mule” and “shop mule” are deceptively similar.

The trade-mark “shop mule” is deceptively similar to the mark “steel mule” previously used on goods of the same descriptive properties.

Appeal from the Commissioner of Patents.

Application by the Marsh Capron Manufacturing Company, for ■which was substituted as applicant the Equipment Corporation of America, to register a trade-mark, opposed by the Bates Machine & Tractor Company. From a decision sustaining the opposition, the applicant appeals.

Affirmed.

Calvin T. Milans and Joseph H. Milans, both of Washington, D. C., and A. .Miller Belfield, of Chicago, 111., for appellant.

S. W. Banning and Ephriam Banning, both of Chicago, 111., for appellee.

Before SMYTH, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.

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VAN ORSDEL, Associate Justice.

This is a trade-mark opposition, brought under section 6 of the Trade-Mark Act of February 20, 1905 (Comp. St. § 9491). It involves the right of appellant to register the words “The Shop Mule” as a trade-mark for tractors. From the decision of the Commissioner of Patents sustaining the opposition, this appeal was taken.

[1] It appears that appellee, opposer, had continuously used, since long prior to any date claimed by applicant, the words “Steel Mule” as a trade-mark for tractors. Prior use by opposer is conceded by the applicant, but it is contended that the goods have not the.same descriptive properties. Opposer’s tractor is of the crawler type, used principally in agricultural work, while that of applicant is of the wheel type, and is used on hard surfaces in and about manufacturing plants and railroad depots.

It appears, however, that, while opposer specializes in tractors of the crawler type, they are not used exclusively in agricultural work, but .about excavating work and on the roads. It further appears that they *634are frequently mounted on wheels, and that opposer manufactures steel tractors for use on soft surfaces.

[2] We agree with the Commissioner that the marks are deceptively similar, and that the goods have the same descriptive properties. It follows that, inasmuch as opposer may legitimately extend his business to the manufacture of light wheel tractors, on which he would be entitled to use his mark, there is no theory upon which the contentions of applicant can be sustainéd.

The decision of the Commissioner is affirmed.