Mogen David Wine Corporation appeals from the decision of the Trademark Trial and Appeal Board refusing to grant registration on the Principal Register of the configuration of a decanter bottle as a trademark for wines.
*540The application1 drawing depicts the bottle as follows:
Appellant contends that the evidence adduced proves that the mark sought to be registered has acquired, for wines, a secondary meaning. The examiner found the evidence insufficient to support this contention. On appeal the board refused to consider the evidence adduced but held that a then existing, but now expired, design patent2 covered the decanter bottle of the instant application and that the bottle configuration “is precluded as a matter of law during the life of the design patent from constituting subject matter which may properly be registered on the Principal Register.” On appeal this court in In re Mogen David Wine Corp., 328 F.2d 925, 51 CCPA 1260, held, in substance, that the existence of the design patent did not preclude appellant’s right to register on the Principal Register, and remanded the case to the board “for decision on the factual issue as to whether the evidence submitted is sufficient to establish that appellant’s bottle design functions as a trademark to indicate origin” (328 F.2d p. 932, 51 CCPA pp. 1268-1269). In its decision on remand from this court the board affirmed the examiner’s refusal of registration on the ground of insufficient evidence of secondary meaning. It is from the latter decision that the instant appeal has been taken.
In his brief on behalf of the Commissioner of Patents and in argument before us, the solicitor challenges “as clearly erroneous the law of the case as established by the majority opinion in Appeal No. 7085. In re Mogen David Wine Corp.,” supra. Suffice it to say that in reaching our decision in appeal No. 7085, we considered, as we do in the instant appeal, the authorities cited and the arguments made as to their relevancy to the issue raised. We are not persuaded of error in our former decision, and consequently we adhere thereto. This conclusion disposes of the motion filed by appellant on October 7, 1966 to strike certain parts of the Brief for the Commissioner of Patents filed September 12, 1966, and taken under advisement by us by order dated October 31, 1966.
The sole issue, therefore, is whether the configuration of appellant's decanter bottle has acquired a secondary meaning under section 2(f) of the Lanham Act so as to function as a trademark identifying appellant’s wines and distinguishing them from those of others.
*541The factual situation found by the board and accepted by us is as stated in our opinion in appeal No. 7085, supra, 328 F.2d 925, 51 CCPA at page 1262. We incorporate same herein by reference.
We have examined appellant’s advertising and promotional material appearing of record. We find therein no promotion advertisement or display of the container configuration per se as an indication of the origin of the wines. While a decanter bottle of wine is featured, there is nothing to indicate that the container has been promoted separate and apart from the word mark “MOGEN DAVID.” We are unable to find a single reference to the container itself. Prominently displayed on the wine-filled container in every instance is “MOGEN DAVID WINE.” The board noted, as do we, the reference to “Package Personality” in the publications “Wines & Vines” and “Spirits.” The reference is not to the bottle itself but to the complete package which consists of the container, the prominently displayed label, and the cellulose band at the top of the bottle with the words “MOGEN DAVID” and the figure of a star embracing the letters “MD.”
We agree with the board that the affidavits submitted by appellant leave much to be desired in the way of substantial proof that the container itself had run the gamut of acquiring a secondary meaning. The approximately fifty affiants, customers of appellant, located generally throughout the United States, executed affidavits similar in language and purport which had been prepared and submitted by appellant. In substance, they amounted to hardly more than a carte blanche approval of that which had been formulated by a party naturally and understandably desirous of serving its own interest. These affidavits contained the statement:
That, to the best of my knowledge and belief, up until only a relatively short time ago, the only wines which were sold in decanter bottles having the shape or substantially the shape of the current decanter bottle in which Mogen David Wines are sold were wines bottled and sold by the concern which bottles and sell [sj Mogen David Wines.
We do not consider the board’s evaluation of the evidentiary efficacy of these affidavits to be in deprecation of the veracity of affiants. The board reasoned that the obvious inference from the statement is that others “are or had been selling wines in decanters similar to that of” appellant and that when such use first began is not ascertainable from the vagueness and ambiguity of the phrase “until only a relatively short time ago.” It would seem reasonable to assume that those affiants engaged in the retail sale of wines could and would have indicated with some degree of particularity the time when usage by others came to their attention. In its assessment of the probative worth of these affidavits, we think the board was warranted in its observation that:
The phrase “until a short time ago” appears to have been tailored to meet the recollection of the affiants as a group rather than to reflect the memory of each individual, and this leads us to question whether this statement made by the affiants was truly their personal recollection and experience or was it merely something related to them by applicant.
Each affidavit contains the following statement or one in similar substance and purport:
When I saw the wine bottled and sold in bottles of the shape of the above-mentioned decanter, I associated said wines with just one company, and that company is the one whiéh sold and sells Mogen David Wines.
As we have heretofore noted, the decanter in issue when displayed in advertisements, promotional literature as well as in the market place is embellished with a cellulose band at the neck of the bottle with the words “MOGEN DAVID” thereon and a label prominently featuring the trademark MOGEN DAVID. As far as the record shows from the advertisement and promotional material and point of sale display, affiants never saw the *542decanter without the neck band or label or had called to their attention the allegedly unusual configuration of the decanter. We think. it reasonable to assume, therefore, as did the board, that the affiants’ association of the decanter with appellant was predicated upon the impression imparted by the mark MO-GEN DAVID and other descriptive material appearing thereon rather than by any distinctive characteristic of the container per se.
The board reasoned that inasmuch as the decanter in issue, unlike the “PINCH” whiskey bottle, is not susceptible to verbal description, it is more than likely that appellant’s wine would be called for and requested by the trademark MOGEN DAVID.
On the basis of the facts of record here presented, we are in agreement with the board that:
Under such circumstances and since most of the assertedly distinctive features of applicant’s decanter are somewhat obscured or hidden when it is filled with wine and adorned with the neck band and label, it is our opinion that the average purchaser is likely to recognize and identify applicant’s wine by the written matter and pictorial representations prominently displayed on the label and neck band rather than on the configuration of the rather prosaic bottle, pre se.
Accordingly, we are not persuaded on the record herein that the decanter bottle creates a commercial impression separate and apart from the word marks appearing thereon and serves, in and of itself, as an indication of origin for applicant’s wine.
The board’s decision refusing registration is affirmed.
Affirmed.
. Serial No. 73,406, filed May 11, 1959.
. No. 158,213, issued April 18, 1950 for a term of 14 years.