(dissenting).
The appellant herein is not seeking to register a representation of the Virgin Mary. . As I understand it, appellant has used no such representation in connection with his allowed registrations of the term “Madonna” as applied to articles of food sold by it, and merely seeks uniformity of mark to include another well-recognized and favorably considered product, wine.
The statute denies registration, to any mark that “consists of or comprises immoral or scandalous matter.”
The mark per se sought to be registered is certainly not within the prohibition of the statute. It has been registered ■ numerous times, as applied to different articles of trade.
There can be no doubt but that the word “Madonna,” by association of ideas, generally refers to representations of the Virgin Mary. In painting and sculpture, great masterpieces of everlasting beauty have been made throughout all of Europe, and *330now adorn churches and art galleries everywhere. They are the mold and form of ideal motherhood and purity. They excite reverential devotion in the souls of many millions of humanity. It is not, however, so much the title but rather the depiction of the subject that moves the emotions of men.
But can it be fairly said that the registration of the simple word “Madonna,” as a trade-mark applied to material things, is shocking to the sense of propriety, or that it is offensive? Not surely in the light of the trade-mark law, under which thread, eau de Cologne, medicines, toilet soap, tooth powder, cold cream, fabrics, precious metal-ware and foodstuffs bear not only the expression itself, but in some instances carry the pictured representation of the Virgin. If it cannot be said that the registration of this word is “scandalous,” as applied to the many articles of commerce above set forth; that it does not call for reprobation or excite a feeling of offense in being so applied, I am at a loss to see how it can reasonably come within the purview of the act as applied to wines. If the use of the trademark “Madonna,” as applied to the goods and articles mentioned, gave offense or scandal, it seems to me it would be noised about and probably these articles would have but scanty sale.
If, as applied to wine, the registration of this word should give scandal to devout church members, that feeling, in all reason, should likewise be engendered by its application to anything not of a religious nature. With respect to some others, wine itself is considered a scandalous thing and they would, if they could, not only deny to it a name, but destroy it utterly.
I cannot agree that wine is often drunk to excess, as, in my opinion, it is a matter of common knowledge that wine users are generally not drunkards and that the habitues of barrooms are not generally wine drinkers. The excessive use of good food results in evil. Surely a glutton gives scandal comparable to the scandal caused by one who drinks alcoholic beverages to excess.
Wine seems to have been a concomitant of mankind as far back as books and tradition reach. It appears to have been what man has always considered the principal and finest product of the grape. The very nature of wine has placed it in a unique position as a beverage. It never has been and never can be classed with the harsh products of distillation which are made, not for the palate, but rather for powerful stimulating effect. Wine always has and probably always will grace boards of refinement and gentle conduct. Ordinary wine is used as a common and usual beverage by multitudes of our people instead of water. The Saviour changed water into wine at the behest of his Virgin Mother at the wedding feast; it was used at the Last Supper, and, as a matter of common knowledge, it is a part of the very core of the most sacred religious rites of many of both Christian and other faiths.
In view of what has been heretofore said in this opinion, I cannot hold that registration of the word “Madonna,” as applied to wines, would shock the conscience or offend against religious belief. To hold otherwise would certainly mean that wine, of itself, is evil, since obloquy would attach to the trade-mark, good in itself, when applied to the beverage. The application herein is not for registration to use in connection with whisky, brandy, rum, beer, or the like. The right to register the mark for such goods is not before us.
The applicable law in this matter is undoubtedly restrictive and was purposely so cast by Congress, and, as such, “must be construed against the officer governed thereby, * * * ” Ex parte Jefferson Electric Mfg. Co., 1917 C.D. 71, 244 O.G. 817.
There are some phases of the opinion of the majority which are not very clear and apparently somewhat contradictory. In one place it says: “It is therefore obvious that, in determining whether a mark ‘consists of or comprises * * * scandalous matter/ consideration ordinarily must be given to the goods upon which the mark is used.”
This would imply, as I understand it, that there are goods upon which the mark “Madonna” might be used without resulting scandal.
Later in the opinion is fotínd the following: “In our opinion, to commercialize the name of, or a representation of, the Virgin Mary as a trade-mark is of very doubtful propriety.”
This would imply that to use the mark upon any goods entering commerce is of doubtful propriety, which I think suggests •that the trade-mark “Madonna” which was applied to various kinds of goods not containing alcohol, referred to in the opinion, *331should not have been registered. This I think is an attack, at least by implication, upon the validity of those registered trademarks and which is unnecessary to the decision of this case.
The last-quoted statement would suggest the impropriety of using the trade-mark “Madonna” upon articles connected with the practice of religion, which are manufactured and sold for profit. It is easy to conceive of articles made for the purpose of promoting religion and aiding in religious ceremonies, which are dealt with in commerce, and upon which the use of the trademark “Madonna” would not be regarded as scandalous by any one. On the contrary, the use of the word “Madonna” as applied to a rosary which is used in a system of prayer to the Virgin Mary is not only appropriate, but would tend to create in the minds of the users even more fervent faith and greater devotion. Obviously, this is true as applied to many different articles used in connection with religion.
The decision of the Commissioner of Patents should be reversed.
BLAND, Associate Judge, concurs in the foregoing dissent.