(dissenting).
There is entirely too much doubt in my mind that the record fairly supports the majority view that the registration “was obtained fraudulently” within my understanding of Section 14(c). I would reverse.
MARTIN, Judge (dissenting).
I agree with the majority that it was not incumbent upon Schwartz to inform the Patent Office that “Fiocco” was the Italian word used to describe spun rayon fiber if that be so.1 However, I disagree with the ultimate conclusion of the majority because I believe that when a court finds one guilty of falsely swearing to a document, it must set forth very precisely the particular evidence which supports the charge.
The majority points out no specific evidence which can be the basis of its finding that Schwartz swore falsely in connection with his declaration concerning the trademark 2 at issue which the court must do to sustain its finding that Schwartz obtained the trademark fraudulently.
Schwartz, on behalf of Bart Schwartz International Textiles, Ltd., stated in the application that said corporation,
“ * * * has adopted and is using the trade-mark shown in the accompanying drawing for Textile fabrics in the piece of cotton, rayon, synthetic fibers and mixtures thereof, in Class 42, Knitted, netted and textile fabrics, and substitutes therefor, and presents herewith five specimens [(or facsimiles)], showing the trade-mark as actually used in connection with such goods, the trademark being applied to labels affixed to the goods, and requests that the same be registered in the United States Patent Office on the Principal Register in accordance with the Act of July 5, 1946.
“The trade-mark was first used on the goods specified on May 2, 1955 and first used on said goods in commerce among the several states, which may lawfully be regulated by *673Congress on May 2,1955.” [Emphasis mine.]
He declared:
“Bart B. Schwartz, being duly sworn, deposes and says that he is the President of Bart Schwartz International Textiles, Ltd. the applicant named in the foregoing statement, that he believes that said corporation is the owner of the trademark which is in use in commerce among the several states and that no other person, firm, corporation or association, to the best of his knowledge and belief, has the right to use such trade-mark in commerce which may lawfully be regulated by Congress either in the identical form thereof or in such near resemblance thereto as might be calculated to deceive, that the drawing and description truly represent the trade-mark sought to be registered, that the specimens [(or facsimiles)] show the trade-mark as actually used in connection with the goods, and that the facts set forth in the statement are true.” [Emphasis mine.]
Regardless of the question of descriptiveness as it pertains to the imported Italian fiber or fabric containing the fiber, or the conclusions to which one may come as to Schwartz’s knowledge of the use of the word by others in a descriptive manner, the majority fails to cite any specific testimony which established that any person or corporation was using “Fiocco” as a trademark to identify the source or origin of textiles containing this fiber or that Schwartz had knowledge that any person or corporation was using “Fiocco” as a trademark for spun rayon or textiles made of that yarn at the time the declaration was made.
I do not believe that the testimony as to Schwartz’s knowledge that “Fiocco” was used to describe spun rayon or textiles containing spun rayon can be the basis for a charge of fraud involving a declaration concerning the use of the word as a trademark. It should be noted he declared his company was using the trademark for textile fabrics and that his company is the owner of the trademark and that no other person, firm or corporation, to the best of his knowledge or belief has “the right to use such trademark.” [Emphasis mine.]
It seems to me that if the majority opinion is carried to its logical conclusion many who file or have filed applications under section 2(f) of the Lanham Act, 15 U.S.C.A. § 1052(f), for the registration of merely descriptive words as trademarks could be subject to the charge of fraud even though the only evidence offered is that others have used the words descriptively which fact was known to the would-be registrants.
To require one who has openly used a word as a trademark for the purpose of identifying his goods for a number of years to know that because others have used it descriptively he is subject to a charge of fraud if he obtains registration, would be establishing a precedent which will cause undue restraint or hardship on past, present and future applicants not contemplated or warranted by the provisions of the Lanham Act.
For example, this court has recently had before it a case involving facts wherein an applicant might have been charged with fraudulently obtaining a registration if the mark had been registered and the case involved cancellation rather than opposition proceedings under this majority opinion. In that case, applicant, using declaration similar to that at bar, endeavored to register “Power Shop” as its trademark for woodworking saws, whereas another corporation had been using the same words descriptively for many years on the same type of goods which were trademarked “Shopsmith.”3 Although there was no direct evidence in the record of that case that applicant’s officers were aware of that descriptive use by the other corporation, in view of *674the extensive advertising of competitive goods by that other corporation,4 I think it can be assumed and could easily have been proven that the applicant had such knowledge.
Under those circumstances, the charge of fraudulently obtaining the registration would be just as applicable in the DeWalt case as it is in the case at bar. Of course, I do not believe that it applies in either situation, but it appears to me that this is the logical result of the majority opinion.
. Although the record in this case may indicate that “fiocco” is used by the Italian textile industry to describe spun or staple rayon fibers, according to Marolli, “Technical Dictionary” (English-Italian, Italian-English, Eirenze, 1957), the Italian textile industry uses “fiocco” to mean floccus, flock, or Staple when referring to material such as wool. Further, according to Denti, “Technical Dictionary” (Italian-English, English-Italian, Milan, 1955), when referring to textiles, the Italian equivalent of staple fiber is “fibra fiocco,” the Italian equivalent of staple rayon is “fiocco raion,” the Italian equivalent of staple rayon yarn is “filato di fiocco raion.” It is apparent, therefore, insofar as these dictionaries are concerned, “fiocco” means staple when used in the textile sense.
. “Trade-mark. The term ‘trade-mark’ includes any word, name, symbol, or device or any combination thereof adopted and used by a manufacturer or merchant to identify his goods and distinguish them from those manufactured or sold by others.” (Trade-Mark Act of 1946, § 45, 15 U.S.C.A. § 1127.)
. DeWalt, Inc. (Pennsylvania Corp.), DeWalt, Inc. (Delaware Corp.), (Assignee by mesne assignments, substituted) v. Magna Power Tool Corporation, Oust. & Pat.App., 289 F.2d 656.
. For example, almost four million circulars containing a descriptive use of “Power Shop” were distributed by the other corporation to its dealers and prospective purchasers of its competitive merchandise during a 3%-year period before the applicant attempted to obtain registration of the same words as a trademark.