(concurring).
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 since 1927. As marketed, the bottle has a printed paper body label, a printed foil neck label, and the red plastic screw cap has “McIIhenny” on its top in raised, letters. All of these indicate the origin of the goods one way or another.
Applicant wants to register as a trademark “a capped bottle of pepper sauce, the configuration of the cap and bottle being that shown in the drawing.” So says the application, which continues, “The mark is used by forming a container and cap as shown in the drawing and filling it with pepper sauce * * It might be added that after filling the bottle the cap is screwed onto it. The drawing, as is implied by the above quotation, shows only configuration of the bottle and cap, devoid of labels, names or color; but from the description in the application one may further infer what is the fact, that the bottle is of transparent glass and the brownish-red pepper sauce is visible through it. In fine, what is alleged to be a trademark and what is sought to be registered as a trademark is the goods themselves, stripped of all labels or other indications of origin. Appellant’s brief leaves no doubt about this in saying, “applicant’s trademark * * * is the physical object, i. e., the capped bottle, not a two-dimensional reproduction thereof * *
It has long been the law that a mere pictorial representation of goods cannot be registered as a trademark for the reason that it is descriptive of the goods and does not indicate origin. Jantzen Knitting Mills v. West Coast Knitting Mills, 46 F.2d 182, 184, 18 CCPA 843, 846; In re The Pierce Arrow Motor Car Co., 55 F.2d 434, 19 CCPA 999; In re Motz Tire & Rubber Co., 40 App.D.C. 487, 1913 C.D. 459; In re Scholl Mfg. Co., 50 App.D.C. 46, 267 F. 348; In re Underberg-Albrecht, 120 USPQ 495 (Com’r); Shoemaker on Trademarks (1931) p. 238; Derenberg, Trade-Mark Protection and Unfair Trading (1936) p. 309; Amdur, *958Trade-Mark Law and Practice (1948) Chap. Ill, § 4; and Yandenburgh, Trademark Law and Procedure (1959) p. 68.
Appellant has attempted to persuade us that its alleged trademark should be registered because there is no express statutory prohibition in section 2 which applies here and hence, under the opening paragraph of section 2, registration cannot be refused. I consider this argument unsound because there is an applicable statutory prohibition. Section 2(e) forbids the registration of “a mark which * * * is merely descriptive” of the applicant’s goods. If a picture of the goods is descriptive of them, a fortiori the goods themselves are descriptive. It may sound foolish to say that goods can describe themselves but it is no more foolish than the contention that goods are their own trademark. I think the goods are the ultimate in descriptiveness of the goods. Nothing describes them better. No words or pictures could be as accurate. Instead of symbols we have the thing itself. It is like a personal appearance. I therefore believe that section 2(e) forbids registration of the goods themselves, at least if section 2 applies at all. It is a little difficult to conceive of the goods as a mark which can be “applied to the goods” as provided in section 2(d); but so is it a little difficult to conceive of the goods, in the words of the first clause of section 2, as a “trade-mark by which the goods of the applicant may be distinguished from the goods of others,” as appellant asks us to do. We can as well do the former as the latter.
This raises the interesting question whether the goods can be their own “trademark,” in the sense of that term as used in section 2. The board alone has passed on that question by saying merely, “That a bottle of a product cannot be a trademark for the product is too obvious to require discussion.” Thereupon it proceeded to a consideration of the case on the basis of the examiner’s erroneous view that the application was one to register the conformation of the bottle and cap. The majority opinion here has considered the case on the same basis. This leaves the issue raised by what the Solicitor refers to as “The first aspect” of the board’s decision, quoted supra, undecided. Reasons of appeal Nos. 2 and 3 are directed to that aspect but appellant’s brief, while mentioning them, assumes the issue to be registrability of the container configuration. Of course, if the latter is not registrable per se, it would not become so by filling the container with pepper sauce so a decision on this question will decide the issue before us and the question whether goods can be their own trademark is left to some later case in which that issue can be fully debated. Personally I doubt that goods in their entirety can be their own trademark. If that is what the board meant in the first aspect of its opinion, I am inclined to agree. At the same time some aspect of the goods may be a trademark. But in such a case the application must specify what aspect constitutes the mark.
Considering the configuration of the container by itself (notwithstanding the insistence of the application that it is filled with pepper sauce), except for its top it has one of the commonest shapes known to the bottle art, which would not indicate anything to anyone. Due to the fact that “Tabasco” is so hot it must be dispensed by the drop, the bottle has a shaker top with a small hole in it, the top being provided with a molded thread for the cap. The top of the bottle neck proper, which has conventional proportions, is sloped upwardly to the unusually small opening in what appears to me to be an obvious way, all of these minor modifications of conventional and commonplace features apparently being dictated by functional considerations. The molded plastic cap is of a size to fit the bottle and the hexagonal shape of its exterior is one of the common expedients of the bottle cap art for giving one a grip on it. The ensemble may be the only one of its kind in the strict sense and those who know “Tabasco” well may recognize it, unfilled and unlabeled, in the sense that a mother can recognize her child, a *959man his dog, or a cavalryman his horse, so as to be able to pick it out from a multitude of similar things. But I do not think this is enough to transmute this container or any part of it into a “trademark.” True trademarks hit one in the eye.
If the potentiality of distinguishing appellant’s sauce from the sauces of others exists at all in this capped bottle, it necessarily resides in very minor and relatively inconspicuous features because the body and neck of the bottle are commonplace in shape and proportions. Appellant includes in the record alleged copies of Texas and New Jersey court decrees in 1898 and 1900 involving imitation of its bottles. But the characteristic distinguishing features of the early bottles then in use are not present in the bottle here involved, and vice versa. On the basis of taking judicial notice of the common shapes of bottles and caps alone, I fail to see any feature of the naked capped bottle which prima fade has sufficient distinctiveness to function as a trademark. This is sufficient ground on which to affirm the board’s holding that it is not a mark identifying and distinguishing applicant’s goods.
If appellant’s advertising, as presented by the record, had as its purpose, as is alleged, the generation of public recognition of the container configuration, it was badly misdirected. In each case the labels overwhelm the bottle configuration in prominence and the emphasis of the advertising copy is all on the word mark “Tabasco.”
The capped bottle in this case is, as a matter of fact, mere background for the primary origin indicators, the diamond-shaped white paper label bearing in red and green ink the word mark “Tabasco” and appellant’s name and address, the green foil neck label on which the word mark is diagonally printed in black, and the name “Mcllhenny” on the cap. The controlling case law is that background for other trademarks is registrable on the Principal Register only when it is either inherently distinctive or shown by satisfactory proof to have acquired a secondary meaning. In re Hillerich & Bradsby Co., 204 F.2d 287, 40 CCPA 990; In re Swift & Co., 223 F.2d 950, 42 CCPA 1048; In re E. J. Brach & Sons, 256 F.2d 325, 45 CCPA 998. Neither of these requirements has been met in this case.