The Cod Oil Drug Company produced a concentrated vitamin product that it sold in capsule form to its

The Cod Oil Drug Company produced a concentrated vitamin
product that it sold in capsule form to its customers. To identify its
products, it produced its capsules with three broad red bands — the first
bearing the letter “C,” the second, an “O,” and the third, a “D.” Each letter
was printed in white against the red background to identify the company and its
product that was derived from cod liver oil. The centre red band, bearing the
letter “O,” also acted as a seal that held the two parts of the capsule
together. The Cod Oil Drug Company applied for a patent on the method of
sealing the
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The Cod Oil Drug Company produced a concentrated vitamin
product that it sold in capsule form to its customers. To identify its
products, it produced its capsules with three broad red bands — the first
bearing the letter “C,” the second, an “O,” and the third, a “D.” Each letter
was printed in white against the red background to identify the company and its
product that was derived from cod liver oil. The centre red band, bearing the
letter “O,” also acted as a seal that held the two parts of the capsule
together. The Cod Oil Drug Company applied for a patent on the method of
sealing the two parts of the capsule together, and for registration of the
three bands with the letters imprinted as a trademark for its product. In the
course of its application for a trademark, Cod Oil Drug Company was faced with
an objection to its use of the trademark by Careful Drug Company, a competitor
that produced its product in capsule form and bearing two blue bands, one on
each part of the capsule, the first bearing a white “C” and the second, a white
“D” against the blue bands. A thin blue band was used to join the capsule
together, but it bore no letter. The design had been used by Careful Drug for
many years before Cod Oil Drug developed the marking of its capsules. On what
basis would Careful Drug argue that the trademark should not be issued? What
might Cod Oil Drug argue in response? How successful would the patent
application likely be?

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