Application of E. J. Brach & Sons

JOHNSON, Chief Judge.

This is an appeal from the decision of the Assistant Commissioner of Patents, 112 U.S.P.Q. 267, affirming the decision of the Examiner of Trademarks which refused registration of applicant’s alleged trademark. The “mark” sought to be registered consists of a decorative panel which forms the setting or serves as the background for applicant’s registered mark “Brach’s.”1 Following is a representation of the panel:

As set forth in the application for registration, the “mark” is used in connection with candy, use since February 11, 1953 having been asserted.

The record…