(dissenting in part, with whom McGUIRE, Judge, joins).
I concur in the result as to appeal No. 8144 affirming the rejection of the application to register “PASTEURIZED.”1 I dissent from the opinion insofar as it affirms refusal of the application to register the mark
“PASTEURIZED” FACE CREAM SPECIAL
involved in appeal No. 8145. I think the two marks involve quite different considerations. In the former case we are dealing with a single descriptive word as well as a prior decision in the District of Columbia courts with respect to the descriptiveness of that word. In the latter, we have a “mark” consisting of a four-word phrase as. to which there has been no prior adjudication and as to which the question of capability of distinguishing applicant’s goods (face cream) from the goods of others rests on a different factual foundation.
My views on the applicable law are essentially set forth in the quotation in Judge Almond’s opinion from my opinion in the Simmons case. I am unable to see any reason why “PASTEURIZED” FACE CREAM SPECIAL, considered as a whole as it must be, is not a mark with a very definite capability of distinguishing applicant’s goods within the meaning of section 23. Judge Almond’s opinion has not given any reason why it is not. Certain it is that its registrability is not determined by the individual, separate descriptiveness of three of the four words. Conceding “face cream” is as descriptive as “pasteurized,” what about the word SPECIAL? What about the overall combination of words including the quotation marks around PASTEURIZED?
The board gave no separate consideration to the “long-form” mark. The solicitor’s brief erroneously states that “a determination of whether ‘Pasteurized’, for use with face cream, is registerable on the Supplemental Register is desposi-tive [sic] of the two appeals at bar.” The examiner made a serious attempt to deal with this mark on its own footing. His ground of rejection was that the whole mark “is believed to constitute the apt descriptive name of applicant’s goods, and is consequently incapable of distinguishing its goods in commerce.” His supporting analysis was:
The wording on the drawing merely indicates that the goods are applicant’s specialty in face creams in its line of goods, and that the same is pasteurized.
This argument I consider too forced to stand up. It appeared in what seems to be the first office action. In the final rejection the examiner modified it by contending that “ ‘Face Cream Special,’ [is] the common name for applicant’s face cream.” I don’t think that contention will hold water. What kind of a product is “Face Cream Special”? In what sense is “special” descriptive? In his Answer, the examiner stated his conclusion that the whole mark is nothing but “an apt description for the goods, which others in the trade are entitled to use.” I can imagine no circumstance, and none has been pointed out, by virtue *443of which a competitor of Helena Rubinstein, Inc., would have the right to market a product labelled
“PASTEURIZED” FACE CREAM SPECIAL. I therefore think the examiner’s rejection is without foundation and that its affirmance below and here is error. On Appeal No. 8145 I would reverse.
. Any quotation marks appearing in the mention of the marks sought to be registered are part of the marks themselves as described in the applications.