DISSENTING OPINION
Rao, Judge:I am not able to agree with the majority that the evidence introduced by the defendant is insufficient to prove commercial designation. On the contrary, I believe it has been abundantly established that, at and prior to June 17, 1930, there was a uniform, definite, and general meaning in the trade and commerce of the United States for the term “inlaid linoleum” which differed from its common meaning and which included the merchandise at bar.
*54Three witnesses, each with a wide experience in selling linoleum through a major portion of the United States, at and prior to June 17, 1930, gave evidence with respect to the commercial understanding of the term in question. Their testimony stands unrebutted.
Witness William J. O’Hara, general branch manager of Congoleum-Nairn, Inc., of Kearny, N. J., manufacturer of smooth surface floor and wall coverings, testified that he started with that company in 1922, in a sales capacity. He continued as a salesman for 16 years, covering the six New England States; became branch manager of the company’s New England branch; and 8 years previous to the trial, was made general manager in charge of the company’s entire selling operations throughout the United States, sales of the company being consummated through headquarters operations, through distributors, and through 10 branch organizations throughout the country. He stated that his company makes and has made merchandise similar to plaintiffs’ exhibit -2; that it is inlaid linoleum, sold by his company under that designation, and has been so sold throughout his entire selling experience. His testimony with respect to commercial designation proceeded as follows:
By Mr. Wagner:
Q. And, in your experience in selling to wholesalers since 1922, has the term inlaid linoleum a definite general and uniform meaning so far as your experience goes throughout the trade of the United States?
The Witness: It has.
^ ^ ^ ^ ii<
By Mr. Wagner:
Q. And, what does that mean? A.' Any variegated — it means different color pieces of linoleum, where the various colors and patterns go through the back is termed inlaid linoleum; the coloring.
Judge Rao: Do you mean by that, if you walk on it and wear it off, it will always be the same whereas in the cheaper linoleums, when you walk on it, the print comes off.
The Witness: You walk the surface off and the pattern off. The pattern on this piece of goods, which we refer to inlaid linoleum will wear through; wall bo retained and wear through to the back of the goods. (Referring to Exhibit 2.)
O’Hara further stated that he was able to tell from an inspection and examination of plaintiffs’ exhibit 2, the method of its preparation; that it “is a blend of several colors which is calendered in a sheet and cross-calendered and finally keyed to the carrier back as finished linoleum”; that such method of preparation would be designated in the trade as inlaid linoleum; that the retailer is not, however, interested in the method of manufacture; but that if the pattern on the linoleum goes through from the surface to the back, it would be designated in the trade and commerce of the United States as inlaid linoleum, notwithstanding any variance in its method of preparation.
*55On the subject of the volume of sales by the yard of linoleum made by Congoleum-Nairn, O’Hara testified that the total yardage sold in this country in 1947 was 63 million; that it is estimated that sales in 1950 totaled 75 million yards; and that Congoleum-Nairn’s percentage of the total over a period of several years varied from 25 to 33 K per centum, of which about 75 to 80 per centum was inlaid linoleum.
Cross-examination of this witness failed to minimize the effect of his direct testimony. He distinguished between plain and inlaid linoleum, the difference being that more colors are formulated in so-called inlaid linoleum, than in plains, and the former is a slower process, and admitted that they are identical in the respect that the single color of the plain linoleum goes all the way through as do the several colors of the inlaid. He referred to various patterns of linoleum made by Congoleum-Nairn, indicating as to each whether it was designated as plain, printed, or inlaid. He was not able to state with accuracy how the different types and patterns of linoleum were referred to in the company’s invoices in 1930, for the reason that he was then a salesman in the field, selling from samples and catalogs, but insisted that in his selling transactions merchandise like exhibit 2 was designated as inlaid linoleum; that the pattern would be preserved right down to the back, and simulated throughout, although the surface colors do nob necessarily penetrate the fabric in the same vertical position. He reiterated:
A. My understanding of the word “inlaid” is a piece of linoleum where the colors that form the pattern go through to the back of the goods and that the pattern as you see it on the surface maintained on the goods even though foot friction will wear down the composition, the pattern basicly [sic] remains intact.
Wilbur Newman, vice president in charge of sales of Sloane-Blabon Corp., manufacturer of linoleum, testified that he had been with that company since its formation in 1931, and prior thereto, and'since 1928, with its predecessor, W. & J. Sloane. In 1928, he covered the States of Illinois, Wisconsin, Minnesota, Missouri, Kansas, Iowa, Nebraska, and North Dakota. In later years, he has always been on the West Coast and in the South. In his present capacity, he supervises wholesale sales for the entire United States, a national distribution, selling to buyers in their home towns and also in New York. Upon being asked to examine plaintiffs’ exhibit 2, he stated that it was inlaid linoleum, which, in 1930, his company called marbletone linoleum, and sold as marble or marbletone linoleum. The following questions were then put to the witness, to which he replied as follows:
By Mr. Wagner:
Q. In your experience, has the term inlaid linoleum had a meaning in the trade? — A. It has.
Q. And, was that meaning definite, general and uniform throughout the United States? — A. Yes, it is.
*56Q. Prior to June 17, 1930? — A. Yes, sir.
Q. What is that meaning?
# jfc >}: * ^ * *
The Witness: The meaning of inlaid linoleum is that the inlaid mix goes through to the back of the goods and is to be distinguished against a piece of goods that is printed. In other words, the composition, while it doesn’t go through vertically, is similar in' the back up to the base.
Newman produced a piece of linoleum (defendant’s exhibit 7), manufactured and sold by his company, which, with a different type of backing material, was manufactured and sold on and prior to June 17, 1930, as marbletone linoleum, standard gauge, and stated that it was inlaid linoleum; that the pattern or design goes through and is simulated from the surface to the back, although not vertically.
When asked on cross-examination to explain what he meant by the statement that the pattern is simulated right down to the back, he testified that by making jaspe sheets “the red color does not necessarily penetrate in a vertical position, but in the form of a marble cake; the same red will be right through to the base; it may change later.” He also stated that defendant’s exhibit 7 was made in precisely the same manner as plaintiffs’ exhibit 2, and was designated in 1930 as inlaid marbletone linoleum; that there is “a difference there between just calling it marbletone linoleum or marble inlaid linoleum. We choose to call it marbletone linoleum”; that he was not able to recall the phraseology on the invoices, but knows from the fact that “samples and everything” were designated inlaid and marbletone linoleum, as distinguished from printed goods; that it was inlaid; and that marbletone and marbletone inlaid would be the same product. He referred to various types and patterns of linoleum-sold by his company, indicated whether each was inlaid, or otherwise, and stated that where the patterns or trade names referred to linoleum in which the pattern or design went through from the surface to the back, the goods were inlaid.
Samuel O. Sixsmith, New York branch manager for Congoleum-Nairn, Inc., testified that he had been connected with that company for a little over 30 years, the first 20 years of which he was a salesman covering the 16 states in the northern part of the United States, plus the District of Columbia. Counsel then stipulated that his testimony would be substantially to the same effect as that given by Mr. O'Hara.
In addition there is now in evidence, by virtue of the majority’s ruling on the admissibility of defendant’s exhibit 6, a trade catalog published by Congoleum-Nairn, Inc., and distributed by that company to its 30 to 40 thousand retail dealers throughout the United States. In it, there is depicted under the designation of inlaid linoleum merchandise similar to plaintiffs’ exhibit 2. While, as noted by the majority, standing alone it could not constitute satisfactory *57proof of commercial designation, nevertheless, it may properly be considered as supplementing the testimony of defendant’s witnesses concerning the generality of the commercial acceptance and understanding of the term “inlaid linoleum.”
The foregoing seems to me to be clear and convincing proof that at and prior to June 17, 1930, there was a uniform, definite, and general meaning in the trade and commerce of the United States for the term “inlaid linoleum” which differed from its common meaning, and which referred to and included all linoleum in which the color scheme or pattern penetrated the fabric from the surface to the backing.
It is not to be supposed that the requirement of generality of a commercial designation necessitates proof with respect to every state in the Union. It is sufficient if the trade understanding is shown to be so widely accepted throughout the United States that it has lost its character as a local, partial, or sectional expression. Just where the line of demarcation is to be drawn would, of course, depend upon the facts presented in any given case. Certainly this record, in which the oral testimony is based upon knowledge derived from sales experience in some 30 states, supplemented by a sales catalog distributed upon a nationwide basis, and in which there is no rebuttal evidence, is one for the application of the rule.
In the case of United States v. Graser-Rothe Co. et al., 11 Ct. Cust. Appls. 493, T. D. 39631, the uncontradicted testimony of two witnesses, one who had purchased the involved merchandise in Ohio and Illinois and had sold it only in the State of Michigan, and the other with purchasing experience in the State of Ohio,- was held “sufficient to establish that the merchandise was definitely, uniformly, and generally, and not partially, locally, or personally bought and sold in the trade as record envelopes.”
In the respect of the quantum of proof necessary to sustain a claim of commercial designation with particular reference to the generality of its acceptance in the trade of the nation, I find analogous those cases in which the question of chief use is in issue. As in the case of commercial designation, chief use “involves a territorial or geographical consideration.” United States v. S. S. Perry, 25 C. C. P. A. (Customs) 282, T. D. 49395.
In the Perry case, the court was called upon to determine whether celluloid poultry leg bands were free of duty as agricultural implements under paragraph 1604 of the Tariff Act of 1930, a classification dependent upon chief use. The evidence consisted of the testimony of but one witness produced by the importer. He stated that he had been in the poultry supply business for 25 years; that he had purchased poultry leg bands for more than 10 years in New York, Chicago, and in *58Kentucky; and that he had sold said merchandise and seen it used throughout the Pacific Coast section, “as far back as Salt Lake City, * * * and the principal egg districts where poultry farming is specialized in.” Concerning this phase of the case, the court’s observations were as follows:
We think the above-quoted testimony from the witness Woodhull, who was unusually well qualified, overcomes the presumed finding of the collector, and that since no evidence was introduced to the contrary and no real issue made on the point, it must be concluded that appellee on the question of chief use made a prima facie case. Under such circumstances, if the Government sought to controvert the issue, it was its duty to introduce testimony on the subject. See Klipstein v. United States, 1 Ct. Cust. Appls. 122, T. D. 31120.
The trial court has found from the evidence of record that the chief use of the merchandise at bar was for the banding of poultry and we think the evidence supports that finding. Certainly we cannot say that its finding is against the weight of the evidence.
It seems to be the position of the Government that it was the duty of the importer to prove by some witness better qualified than Mr. Woodhull that in every part of the United States the chief use of the article involved was agricultural. In the first place, it is difficult-for us to understand how in the poultry supply business it would be possible to produce a witness with a wider experience in selling and handling poultry supplies such as the articles here involved. Woodhull’s greatest activities during the ten years immediately preceding his testifying were in the principal poultry raising centers of the United States. Who could be better qualified to give an opinion upon the question? In the next place, if it should appear that in some places in the United States the article was chiefly used for another purpose this fact would not of itself be sufficient to determine that it was not chiefly used for agricultural purposes in the United States. The determination of chief use not only involves a territorial or geographical consideration but the quantity of the merchandise used. It is obvious that poultry is raised in every section of the United States. If the Government’s contention, which, in effect, is that a witness or witnesses must be produced to prove actual use in every part of the United States, was approved, in our judgment it would result in a situation where it would be almost impossible to overcome a presumed finding by the collector such as has arisen in this case.
It seems to me, therefore, that there is substantial evidence of commercial designation in this case, and since the plaintiffs have not produced any conflicting testimony, that their claim should be overruled.