Application of Esso Standard Oil Company

I think that the “label” 1 which is the subject of this appeal is not a trademark and, therefore, I am compelled to dissent from the majority view which would entitle it to registration. What the applicant seeks to register is the entire appearance of its package (with the exception of the top and bottom of the can which are rarely seen when the cans are stacked for display purposes and which may be disregarded) — in effect, the dress of the goods.

A clear distinction must be borne in mind between that which enables a customer to recognize goods and that which a customer regards as the…