Application of McIlhenny Company

While I agree in general with Judge MARTIN’S opinion, I wish to mention certain salient features of this case which influence my decision not referred to therein.

The goods named in the application is “Pepper Sauce.” Pepper sauce is a liquid and of necessity is sold in a container. The record shows the marketed form of the goods to be glass bottles of pepper sauce containing 2 fluid ounces. Thus, what is marketed is not just pepper sauce but, more accurately, 2-ounce bottles of pepper sauce. Accepting the allegation of the application as true, the applicant has used the same cap and bottle…