' DISSENTING OPINION
GRAi-iam, Presiding Judge:I have been unable to bring my mind to the point where I can agree with the conclusion reached by the majority in this case. I shall not attempt any lengthy discussion of the many points which have been incidentally brought up and discussed by counsel and by the majority, but shall state briefly my views on what I consider to be the principal point involved in the case, namely, whether the notation “floating power” is or is not descriptive, as here used. I am of opinion that it is descriptive, and ousrht not to be registered.
*1111The term “floating,” while usually applied to something which is sustained by and resting upon a fluid, applies equally, in my mind, to something which is movable. Webster’s New International Dictionary gives several meanings to the word, as follows:
floating, p. a. 1. Buoyed upon or in a fluid; as, the floating timbers of a wreck; floating motes in the air.
2. Free or loose from the usual attachment; as, the floating ribs in man and some other animals.
3. Shifting from place to place; having no permanent home; as, the floating population.
4. Shifting or variable in its form, its incidence, or the subject matter to which it applies; hence, not fixed; not funded; not invested; not determined; as, floating capital, floating anchor. Naut. — SEA ANCHOR. — f. axle, Ye-Moles, a live axle for a self-propelled vehicle, in which the revolving part serves only to turn the wheels, the dead weight of the vehicle being carried on the ends of a fixed axle housing or casing. * * *
We hear the expression used quite commonly in the ordinary language of the people, and as applied to the anatomy o,f man, such as “floating rib” or “floating kidney.” When so used, it has always the meaning of something which is movable, and not fixed and attached in the ordinary way.
That it was well known in the automotive art is indicated by three patents which are incorporated into the record in connection with the letter of the examiner of August 5, 1931, namely, Summers, No. 1,701,396, Prosser, No. 1,761,584, and Lee, No. 1,729,394. In the Summers patent, which was issued February 5, 1929, before the appellant here began using the designation “floating power,” the patentee spoke of “floating the engine” and described the manner of “floating.” The patentee repeatedly, in his specification and in his claims, repeated this language as applied to an engine which was movable upon insulated mountings. The patentee Prosser likewise spoke of a “floating engine and associated hanger,” and described his method o.f flotation. This patent was granted on June 3, 1930. The patentee Lee, in a patent granted September 24, 1929, described his engine as being* “floatingly suspended,” and as a “floating engine,” and described means to “floatingly carry the engine weight.”
In its common meaning, therefore, as well as in the technical language of the art in which the parties hereto were working, “floating” had a distinctive meaning as to the power plant of an automobile, and there could he no reason for misunderstanding on the part of one to whom the information was conveyed, that the power of an automobile was “floating.”
A very involved and ingenious argument is made as to the meaning of the term “power”; that this designation “floating power” cannot be descriptive because it does not describe the device to which *1112it is applied. Power, it is said, is an intangible thing, and is entirely distinct and separate from an engine or power plant, and that, therefore, these mountings upon which appellant’s designation of “floating power” is placed, do not describe either the device or its functions. It is argued that the engine may create the power, but the power itself does not float.
I am unable to agree with this conclusion which seems to me entirely too technical, in view of the object which is sought to be attained by the Trade-Mark Registration Act of 1905. I cannot believe that anyone would misunderstand what is meant by “floating power.” Power, as I take it, is the energy which animates the vehicle, and includes in its meaning not only the actual automotive power, but the plant which creates it as well.
This conception is borne out bjr the same lexicographical authority above cited, Webster’s New International Dictionary, as follows:
power * * * 11. Meoh. a The rate at which mechanical energy is exerted or mechanical work performed, as by an engine or other machine, or an animal. The units most commonly used are the horse power and the watt. The power of a direct electric current is the product of the voltage and current. The true power of an alternating current is the product of voltage, current, and power factor. The apparent poioer (volt amperes) of an alternating current is the product of voltage and current. See ENERGY COMPONENT, b Capacity for operating; as, the power of an engine governor, c Applied force; as, the poioer applied at one end of a lever to overcome a “resistance” at the other end. d A source of useful mechanical energy'; as, water power; hand power, etc. Specif., a mechanical source, as opposed to human power, e A mechanism by which energy is applied; as, a dog power; the mechanical powers. Ohsoles.
The assistant commissioner makes a very pertinent observation which I quote:
It seems obvious, if a power unit or source of power is mounted in resilient mountings of this character, and referred' to as “floating power”, the term is merely descriptive of the assemblage. The term “floating” when so applied is clearly and, as indicated by the patents or records, obviously descriptive. The addition thereto of the term “power” does not save the notation and render it non-descriptive. “Power” in this sense is the equivalent of “engine” and the compound term “floating power” would accordingly seem to indicate nothing more than a floating power unit. To concede that the applicant is entitled to the exclusive use of the words “floating power” in describing a unit resiliently mounted would be to deprive other manufacturers of their natural right to the free and unrestrained use of descriptive terms, more specifically of tlieir right to refer to such a unit as a “floating power unit”.
I agree with the suggestions made above.
There are several authorities which I deem in point, and which seem to point to a different conclusion than that arrived at by the majority herein:
In Chicago Pneumatic Tool Co. v. The Black & Decker Mfg. Co., 17 C. C. P. A. (Patents) 962, 39 F. (2d) 684, we were considering *1113the trade name “bicycle” tised as a trade-mark for portable power tools, including electrical tools and devices. We beld the mark should be cancelled, and affirmed the decision of the Patent Office tribunals in that respect, bolding the term to be descriptive, as used. In doing so, we made this pertinent observation:
It seems to ns that to hold with appellant in this ease would require the application of a higher degree of technical refinement than we think the trade mark registration act contemplates. We can not doubt that whatever distinction those having highly specialized learning as to electrical technique might be able to draw by strict construction of electrical terms, the phrase “high cycle,” as applied to these motor-driven tools, does convey to the public generally a definite meaning distinctly descriptive of the tools. The relation between the cycle of the current and the revolution or operation of the tool or mechanism is too direct and immediate, in our view, to admit of any other conclusion. We think it is more than suggestive and amounts to descriptiveness.
In that case, it will be noted, the word “bicycle” or the words “high cycle” did not describe the tools, but rather described their method of operation. However, it was such a description as was intelligible to and understood by those who heard it used, and the .same is true of the expression here, “floating power.” The hearer instinctively knows that the source of power, or engine, or power plant, is movable, and shifts, as the occasion requires.
Two decisions of the Commissioner of Patents are instructive and in point. One is in Ex parte Warner Gear Company, decided August 16, 1932, 156 Ms. Dec. 925, in which the term under consideration was the words “free wheeling”; the assistant commissioner said :
It seems to follow that if the applicant were given the right to the exclusive use of the term “free wheeling” as a trade-mark for transmissions, the manufacturers of the transmissions disclosed in the above noted patents would be excluded from the right to use such term, or its equivalent in describing this characteristic of their respective devices. Nor would other manufacturers of free wheeling vehicles be entitled to use this term as descriptive thereof, without infringing the applicant’s trade-mark.
Again, in Ex parte William Wesley Hicks, decided March 20, 1931, 156 Ms. Dec. 608, Assistant Commissioner Kinnan held the words “wired heat” as a trade-mark for electric heaters to be descriptive, and made the following statement:
It may be said either of the two words of the notation used alone in connection with goods of the character here under consideration would, beyond any question, be merely descriptive. “Heat” as applied to a heater is obviously descriptive and “wired” as applied to an electric heater would as clearly he descriptive. It may be also noted that "‘wire heat” would be merely descriptive because the heat is produced by the heating of the wire and so the wire gives off the heat and the heat would be correctly described as wire heat. No question could be raised as to the fact that the words “wired lioater” are merely descriptive. * * *
*1114I am of opinion that the decision of the Commissioner of Patents should be affirmed.
Lenroot, J.:
I concur in this dissent.