secondary meaning in trade-mark parlance.

1. ANG V. TEODORO (G.R. NO. L-48226)

This doctrine is to the effect that a word or phrase
Facts: Respondent Teodoro has long been using
originally incapable of exclusive appropriation
Ang Tibay both as trademark and tradename in
with reference to an article of the market, because
the manufacture and sale of its slippers, shoes
geographically or otherwise descriptive, might
and indoor baseballs when he formally registered
nevertheless have been used so long and so
it. Meanwhile, petitioner Ang registered the same
exclusively by one producer with reference to his
trademark Ang Tibay for its products of pants
article that, in that trade and to that branch of the
and shirts. Respondent moved to cancel the
purchasing public, the word or phrase has come
registration of petitioners mark. The trial court
to mean that the article was his product. We have
found for petitioner Ang. CA reversed the
said that the phrase Ang Tibay, being neither
judgment. Petitioner argues the validity of the
geographic nor descriptive, was originally
mark being descriptive; that it had not acquired
capable of exclusive appropriation as a trade-
secondary meaning in favor of respondent; and
mark. But were it not so, the application of the
that there can be no infringement/unfair
doctrine of secondary meaning made by the
competition because the goods are not similar.
Court of Appeals could nevertheless be fully
Issues: (1) Whether or not ANG TIBAY is a
sustained because, in any event, by respondents
descriptive term not registrable.
long and exclusive use of said phrase with
(2) Whether or not the trademark ANG TIBAY
reference to his products and his business, it has
has acquired a secondary meaning.
acquired a proprietary connotation.
(3) Whether or not there is trademark
infringement and/or unfair competition between
(3) YES. In the present state of development of the
unrelated goods.
law on Trade-Marks, Unfair Competition, and
Ruling: (1) NO. The phrase Ang Tibay is an
Unfair Trading, the test employed by the courts
exclamation denoting administration of strength
to determine whether noncompeting goods are or
or durability. For instance, one who tries hard but
are not of the same class is confusion as to the
fails to break an object exclaims, Ang tibay!
origin of the goods of the second user. Although
(How strong!) The phrase ang tibay is never
two noncompeting articles may be classified
used adjectively to define or describe an object.
under two different classes by the Patent Office
One does not say, ang tibay sapatos or sapatos
because they are deemed not to possess the same
ang tibay is never used adjectively to define or
descriptive properties, they would, nevertheless,
describe an object. One does not say, ang tibay
be held by the courts to belong to the same class
sapatos or sapatos ang tibay to mean durable
if the simultaneous use on them of identical or
shoes, but matibay na sapatos or sapatos na
closely similar trade-marks would be likely to
matibay. From all of this we deduce that Ang
cause confusion as to the origin, or personal
Tibay is not a descriptive term within the
source, of the second users goods. They would
meaning of the Trade-Mark Law but rather a
be considered as not falling under the same class
fanciful or coined phrase which may properly
only if they are so dissimilar or so foreign to each
and legally be appropriated as a trademark or
other as to make it unlikely that the purchaser
tradename. In this connection we do not fail to
would think the first user made the second users
note that when the petitioner herself took the
goods. The Court of Appeals found in this case
trouble and expense of securing the registration
that by uninterrupted and exclusive use since
of these same words as a trademark of her
1910 of respondents registered trade-mark on
products she or her attorney as well
slippers and shoes manufactured by him, it has
as the Director of Commerce was undoubtedly
come to indicate the origin and ownership of said
convinced that said words (Ang Tibay) were not
goods. It is certainly not farfetched to surmise
a descriptive term and hence could be legally
that the selection by petitioner of the same trade-
used and validly registered as a trademark.
mark for pants and shirts was motivated by a
desire to get a free ride on the reputation and
(2) NO. In view of the conclusion we have
selling power it has acquired at the hands of the
reached upon the first assignment of error, it is
respondent.
unnecessary to apply here the doctrine of
 2. G.R. No. L-8072. October 31, 1956. case of commodities or articles of relatively
LIM HOA, Petitioner, vs. DIRECTOR great value, for the prospective buyer,
OF PATENTS, Respondent. generally the head of the family or a
MONTEMAYOR, J.: businessman, before making the purchase,
reads the pamphlets and all literature
Facts: Lim Hoa, herein petitioner, filed an
available, describing the article he is planning
application for the registration of a trademark,
to buy, and perhaps even makes comparisons
consisting of a representation of two midget
with similar articles in the market. But in the
roosters in an attitude of combat with the word
sale of a food seasoning product, a kitchen
Bantam printed above them. The trademark
article of everyday consumption, the
being registered covered products consisting
circumstances are far different. Said product is
of food seasonings. Agricom Development
generally purchased by cooks and household
Corp., a domestic corporation, opposed the
help, sometimes illiterate who are guided by
application on several grounds, among others,
pictorial representations and the sound of the
that the trademark sought to be registered was
word descriptive of said representation. The
confusingly similar to its registered mark,
two roosters appearing in the trademark of the
consisting of a pictorial representation of a hen
applicant and the hen appearing on the
with the words Hen Brand and Marca
trademark of the Oppositor, although of
Manok, which brand or mark was also used
different sexes, belong to the same family of
on a food seasoning product, before the use of
chicken, known as manok in all the principal
the trademark by the applicant. Agricom
dialects of the Philippines, and when a cook or
likewise asserted that the trademark had been
a household help or even a housewife buys a
adopted by its predecessor, the Advincula
food seasoning product for the kitchen the
Family, since 1946 for said food seasoning. The
brand of Manok or Marca Manok would
Director of Patents disallowed the registration
most likely be upper most in her mind and
of the Lim Hoas trademark because it would
would influence her in selecting the product,
likely cause confusion or mistake or deceive
regardless of whether the brand pictures a hen
purchasers. Hence, this present appeal by the
or a rooster or two roosters. To her, they are all
petitioner.
manok. Therein lies the confusion, even
Issue: Whether or not there is similarity deception.
between the two trademarks as to cause
confusion or mistake in the mind of the public.
3. CHUANCHOW SOY & CANNING
Held: Yes. It has been consistently held that the
CO. vs DIRECTOR OF PATENTS AND
question of infringement of a trademark is to VILLAPANA
be determined by the test of dominancy.
Similarity in size, form, and color, while Facts: Petitioner Chuanchow Soy & Canning Co.
relevant, is not conclusive. If the competing and respondent Rosario Villapania are engaged
trademark contains the main or essential or in the manufacture and sale of soy sauce. Since
dominant features of another, and confusion 1950, petitioner had been using as trade mark the
and deception is likely to result, infringement words "Carp Brand Soy", printed in a distinctive
style of lettering above the drawing of a fish to
takes place. Duplication or imitation is not
distinguish its product, on labels affixed directly
necessary; nor it is necessary that the infringing
to the bottles containing soy sauce, and on tissue
label should suggest an effort to imitate. The
paper in which these bottles were wrapped. The
danger of confusion in trademarks and brands
Patent Office issued Trademark Registration
which are similar may not be so great in the
Certificate 4384 to it for its aforesaid trademark.
Respondent Villapania since 1956 had been using
as trademark of her soy sauce the name of
"Bangos Brand" written in the same distinctive
style of lettering as that of the petitioner's "Carp
Brand", above the drawing of the fish similar to
the fish drawing on the trademark of petitioner,
on labels also attached to the bottles containing
her soy sauce, and the bottles were wrapped also
in tissue paper bearing a similar design.
On October 12, 1956, Villapania applied for
registration of her trademark as above-described.
Upon examination of the trademark, the
examiner of the Office of the Director of Patents
made the following ruling:
1.Examiner has taken into consideration a
previously registered mark: CARP BRAND &
fish representation for soy sauce of the
Chuanchow Soy & Caning Co., Reg. No. 4384
dated October 27, 1953, and found that the fish
representation closely resembles to applicant's
mark as presented in the drawing. In view
thereof, the applicant must submit new drawings
and facsimiles for the word: "BANGOS BRAND"
only as shown in the labels submitted, excluding
SOY and fish representation.
Respondent Villapania submitted a drawing of
the word "Bangos Brand" only, the same was
published in the Official Gazette. However, she
continued and is supposedly still continuing to
use the labels and wrappers Exhibits D and E on
the bottles containing her product, which as
already stated, included not only "Bangos Brand"
but also the word "Soy" above the drawing of the
fish. So, on October 9, 1957, petitioner company
filed its opposition to respondent's application.
The case was submitted on a stipulation of facts
made verbally by them during the hearing.
The case was submitted on a stipulation of facts
made verbally by them during the hearing.
Respondent Director of Patents rendered a
decision dismissing petitioner's opposition to the
application above-stated, which decision is now
on appeal.
Issue: W/N the application for registration of
respondent must denied.
Held: Yes, the application for registering
Respondents trademark must be denied as it
resembles to Petitioners trademark and would
likely to cause confusion.
As in the present case, one applies for the
registration of a trademark or label which is
almost the same or very closely resembles one
already used and registered by another, the
application should be rejected and dismissed
outright, even without any opposition on the part
of the owner and user of a previously registered
label or trademark, this not only to avoid
confusion on the part of the public, but also to
protect an already used and registered trademark
and an established goodwill. There should be no
halfway measures, as was done in this case by the
ruling of the examiner who directed the
respondent to amend or modify the label or
trademark she sought to register by eliminating
some portions thereof. As a result, although the
word "Soy" and the drawing of a fish were
eliminated, still, the word "Bangos" and the word
"Brand" which are similar to the style of lettering
of the corresponding words in the label, Exhibit
B, of petitioner, could still create confusion or
doubt in the mind of prospective purchasers, to
say nothing of the fact that the words "Carp" and
"Bangos" both indicate fish, and the additional
fact that both trademarks and labels refer to or
advertize the same product, namely, soy sauce.
Why the respondent in the present case could not
have selected as the principal figure in her label
some animal living on the surface of the earth,
like a dog, cat, monkey, etc., or an article or
furniture, like a table, chair, or if she was
determined to select a creature living in the sea,
that of a crab, lobster, or octopus, is hard to
understand. She had to select fish, which as
already stated, she pictured in her label similar in
size, shape and form as that appearing in the
already used and registered label of petitioner.
The Director of Patents should as much as
possible discourage all attempts at imitation of
labels already used and registered, as already
stated, to avoid confusion, to protect the public
from purchasing the wrong article or brand and
also to give protection to those who have
established goodwill, reputation and name in the bearing the trademark entered the Philippines
manufacture and sale of their products by means legally, the owner of the trademark is entitled to
of a label of long standing and use and duly the right to use the same to the exclusion of
registered. others. Existence of formal commercial
agreement between the countries is unnecessary
Another circumstance against the registration of
for the recognition of trademarks as such is
the trademark or label of respondent is that she
inconsistent with the freedom of trade
would appear not to have used the amended or
recognized in modern times.
modified label she presented for registration, but
continued to use the original label or trademark
which was refused registration by the Director of
Patents. This indicates not only her desire to
continue taking advantage of the goodwill
acquired and established by the petitioner, but it
equally shows that she had not used the label or
trademark now being applied for by her, despite
the fact that the law requires at least two months
previous use prior to application for registration.

4. Asari Yoko v. Kee Boc

GR L-14086, 20 January 1961; En Banc,

Labrador (J)

Facts: In 1953, Kee Boc filed a petition for the

registration of the trademark Race to be used in
shirt and

undershirts manufactured by him. Opposition

was interposed by Asari Yoko Co. Ltd. of Japan
on the ground that it was the owner of such
trademark both in Japan and in the Philippines.
The director of Patents dismissed Asari Yokos
opposition. Hence, the petition for review.

Issue: Whether Asari Yoko was the rightful

owner of the Race Brand trademark.

Held: The trademark RaceBrand applied for is

exactly the same as the trademark RaceBrand
applied for is exactly the same as the trademark
RaceBrand registered in 1937 in Tokyo, Japan.
Paper sheets pasted in Kee Bocs boxes covered
the words registered Trademark by the
oppositor, thus, is proven conclusively by
evidence. No evidence was found whether the
trademark was registered by a Japanese in the
Philippines before the war to warrant its
confiscation under the Trading with the enemy
Act. As commercial relations with Japan had
existed and continued, and that the goods
 5. G.R. No. L-17501 April 27, 1963 words is not the only determinant factor. The
MEAD JOHNSON and COMPANY, trademarks in their entirety as they appear in the
petitioner, vs. N. V. J. VAN DORP, respective labels must also be considered in
LTD., ET AL., respondents. BAUTISTA relation to the goods to which they are attached.
ANGELO, J.: The discerning eye of the observer must focus not
only on the predominant words but also on the
Facts: N.V.J. Van Dorp, Ltd., herein respondent,
other features appearing in both labels in order
is a corporation organized under the laws of
that he may draw his conclusion whether one is
Netherlands. Mead Johnson & Company, herein
confusingly similar to the other. Having this view
petitioner, is a corporation organized under the
in mind, the Court believes that while there are
laws of Indiana, USA. Respondent filed an
similarities in the two marks there are also
application for the registration of the trademark
differences or dissimilarities which are glaring
ALASKA and pictorial representation of a Boys
and striking to the eye as the former. The Court
Head within a rectangular design (ALASKA
further holds that the petitioners are not food or
disclaimed). The petitioner being the owner of
ingredients of foods but rather medicinal and
the trademark ALACTA used for powdered
pharmaceutical preparations that are to be used
half-skim milk, filed an opposition on the ground
as prescribed by physicians. On the other hand,
that it will be damaged by the said registration as
respondents goods cover milk, milk products,
the trademark ALASKA and pictorial
dairy products and infants food, and for the use
representation of a Boys Head, used for milk,
of these products there is no need or requirement
milk products, dairy products and infants foods,
of a medicinal preparation. Thus, it is concluded
is confusingly similar to its trademark
that the applicants mark does not resemble
ALACTA. The respondent contended that
opposers mark as to be likely when applied to
ALASKA is entirely different from opppsitors
the goods of the parties to cause confusion or
trademark and product ALACTA, since
mistake or to deceive purchasers. Decision
applicants product covers milk, milk products,
appealed from is affirmed.
dairy products and infants food, while
oppositors products cover pharmaceutical
preparations for nutritional needs. The Director
of Patents Office, rendered decision dismissing 6. CHUA CHE vs. PHILIPPINE PATENT
the opposition and holding that the trademark OFFICE and SY TUO
sought to be registered does not sufficiently G.R. No. L-18337. January 30, 1965
resemble oppositors mark as to be likely when
applied to the goods of the parties to cause
confusion or mistake to deceive purchasers.
Facts: On October 30, 1958, Chua Che presented
Hence, petitioner filed the present petition for
with the Philippines Patent Office a petition for
review.
the registration in his favor the trade name of "X-
Issue: Whether or not the trademarks ALASAK 7". Chua Che declares that the trade name was
and ALACTA are similar as would likely to used by him in commerce within the Philippines
cause confusion or mistake. on June 10, 1957, and had been continuously used
by him in trade in the Philippines for more than
Held: No. It is true that between petitioners one year.
trademark ALACTA and respondents
ALASKA there are similarities in spelling,
appearance and sound for both composed of six
Sy Tuo opposed, claiming that he owns the
letters of three syllables each and each syllable
trademark and had been using it since 1951 as
has the same words, but in determining if they
mark for perfume, lipstick, and nail polish as
are confusingly similar a comparison of said
opposed to Chua Che's use which was
admittedly only in 1957.
The Director of Patents denied the application for
use on soap Class 51, being manufactured by said
Chua Che, upon the opposition of respondent Sy
Tuo. The Director of Patents held that the
products of the parties, while specifically
different, are products intended for use in the
home and usually have common purchasers.
Furthermore, the use of X-7 for laundry soap is
but a natural expansion of business of the
opposer.
Issue: WON allowing Chua Che to register the
same mark for laundry soap would likely to
cause confusion on the purchasers of X-7
products by SY Tou.
Ruling: Yes. While it is no longer necessary to
establish that the goods of the parties possess the
same descriptive properties, as previously
required under the Trade Mark Act of 1905,
registration of a trademark should be refused in
cases where there is a likelihood of confusion,
mistake, or deception, even though the goods fall
into different categories
The products of appellee are common household
items now-a-days, in the same manner as laundry
soap. The likelihood of purchasers to associate
these products to a common origin is not far-
fetched. Both from the standpoint of priority of
use and for the protection of the buying public
and appellee's rights to the trademark "X-7", it
becomes manifest that the registration of said
trademark in favor of applicant-appellant should
be denied.
7. Operators Inc. v. Director of Patents
MAKALINTAL, J.:
Petitioner, a domestic corporation, applied to the
Philippine Patent Office for registration of
AMBISCO as a trademark for its locally
manufactured candy products. It has been using
said trademark since May 1956 by virtue of two
contracts with the American Biscuit Company,
also a domestic corporation.
The National Biscuit Company opposed the
application, having previously registered
NABISCO as trademark for its own bakery
goods, such as biscuits, crackers, cakes and
wafers. The oppositor, a corporation organized in
the United States, has had the said trademark
registered in the Philippines since 1930, and
renewed the registration in 1948 under the latest
trademark law.
In his decision of September 20, 1960 the Director
of Patents defined the issues in this case to be: (1)
whether or not the two trademarks aforesaid are
so similar to each other as to cause confusion,
mistake or deception of purchasers; and (2)
whether or not the applicant had a right in the
first place to apply for registration of AMBISCO
as a trademark at all. And reaching an affirmative
conclusion on the first issue, the Director denied
the application without considering it necessary
to resolve the second. Petitioner moved to
reconsider, and upon denial of the motion
brought up the case to this Court for review.
The second issue commands first consideration.
Under section 2 of Republic Act No. 166, as
amended by section 1 of Republic Act No. 865,
trademarks, tradenames, and service marks,
owned by persons, corporations, partnerships or
associations domiciled in the Philippines or in
any foreign country may be registered here
provided certain conditions enumerated in the
same section are complied with. The right to
register, as may be noted, is based on ownership.
In the case of the trademark AMBISCO, the
evidence shows that it is owned by the American
Biscuit Co., Inc., and not by petitioner Operators,
Inc. Such evidence consists of the certification
signed jointly by Jorge B. Vargas and by Eu Chua
Leh, presidents of the said Corporations,
respectively, as follows (Exh. 2):
On September 26, 1953, and on June 12, 1954, the
American Biscuit Co., Inc., and the Operators
Incorporated, both corporations organized under
the laws of the Philippines, entered into
contracts, and under such contracts, the
Operators Incorporated is authorized by the
American Biscuit Co., Inc. to operate the candy
business of the latter and among the various
terms and stipulations in said contracts, the
Operators Incorporated agreed to distinctly label
and display all products manufactured and sold
by it as products of the American Biscuit Co., Inc.
and that all the trademarks contained in such
labels shall be considered as property of the
American Biscuits Co., Inc.
Petitioner objects to the consideration of the
question of ownership of the trademark as an
issue on the ground that it was not raised by
respondent either in its opposition or in its
memorandum filed after the parties had adduced
their evidence. In the first place respondent could
not have known at the outset that petitioner was
not the owner of the trademark it was seeking to
register. That fact was brought out for the first
time when the certification quoted above was
presented. Secondly, it was incumbent upon
petitioner, as applicant, to prove that it had a
right to register the trademark applied for and
consequently, to show compliance with all the
legal requisites including ownership thereof. An
application for registration under the Patent Law
is not an ordinary litigious controversy between
private parties. Public interest is involved and all
questions as to whether or not the law is satisfied
may be considered by the Patent Office or by the
Court even though not specifically raised by
either of the parties.
On the other issue, we find no cogent reason to
disagree with the Director of Patents that
"considering the similarities in appearance and
sound between the marks AMBISCO and
NABISCO, the nature and similarity of the
products of the parties together with the fact that
opposer's NABISCO has been used in commerce
in the Philippines for more than fifty five (55)
years before AMBISCO was adopted by
applicant, confusion of purchasers is likely.
In the case of Co Tiong vs. Director of Patents, 95
Phil. 1, this Court said:
... If the competing trademark contains the main
or essential or dominant features of another, and
confusion and deception is likely to result,
infringement takes place. Duplication or
imitation is not necessary; nor is it necessary that
the infringing label should suggest an effort to
imitate. (G. Heilman Brewing Co. vs.
Independent Brewing, Co., 191 F. 489, 495, citing
Eagle White Lead Co. vs. Pflugh [CC] 180 Fed.
579). ...
... The ordinary customer does not Scrutinize the
details of the label; he forgets or overlooks these,
but retains a general impression, or a central
figure, or a dominant characteristic. The reason
for the above has been explained in the following
manner:
"... This rule has a basis in experience. The
average person usually will not, and often
cannot, take in at a casual glance all, or even a
large part of the details of what he looks at. What
part or parts of two trademarks which are alleged
to be similar does the average ordinary buyer see
when he looks at them? What features of them are
remembered by the average buyer? We do not
really hear all that is spoken in our hearing. Far
from all we see or hear casually is retained
sufficiently clearly or in sufficient detail for us to
get a lasting impression of it which we can
remember when we encounter the mark again.
The importance of this rule is emphasized by the
increase of radio advertising in which we are
deprived of the help of our eyes and must depend
entirely on the ear.
xxx xxx xxx
"The question of infringement is to be determined
by the test of dominancy. The dissimilarity in
size, form and color of the label and the place
where applied are not conclusive. If the
competing label contains the trademark of
another, and confusion or deception is likely to
result, infringement takes place, regardless of the
fact that the accessories are dissimilar.
Duplication or exact imitation is not necessary;
nor is it necessary that the infringing label should
suggest an effort to imitate. (G. Heilman Brewing
Co. vs. Independent Brewing Co., 191 F. 489., 495,
citing Eagle White Lead Co. vs. Pflugh (C.C.), 180
P. 579."
Thus "Celdura" and "Corduara" were held to be
confusingly similar in sound when applied to
merchandise of the same descriptive properties
(Celanese Corp. of America vs. Du Pont, 154 F.
2nd 146, 148); and "Lusolin" was considered as an
infringement of the trademark "Sapolin" for the
same reason (Sapolin Co. vs. Balmaceda, et al., 67
Phil. 705).
On the whole we find no reversible error in the
decision appealed from and therefore affirm the
same, with costs.
8. BRISTOL MYERS CO. vs DIRECTOR OF
PATENT
Facts: Bristol Myers Co., a corporation of the State
of Delaware, U.S.A., filed on January 6, 1959 an
opposition to the application. Said oppositor is
the owner in the Philippines of the trademark
"BUFFERIN" under Certificate of Registration
No. 4578 issued by the Philippine Patent Office
on March 3, 1954. Its trademark is also registered
in the United States under Certificate of
Registration No. 566190 issued on November 4,
1952. It was first used in the Philippines on May
13, 1953. The product covered by "BUFFERIN"
also belongs to Class 6, Medicines and
Pharmaceutical Preparations. Designated as
"Antacid analgesic", it is intended for relief in
cases of "simple headaches, neuralgia, colds,
menstrual pain and minor muscular aches."
The thrust of oppositor's contention was that the
registration of the applicant's trademark
"BIOFERIN would violate its rights and interests
in its registered trademark "BUFFERIN" as well
as mislead and confuse the public as to the source
and origin of the goods covered by the respective
marks, in view of the allegedly practically the
same spelling, pronunciation and letter-type
design of the two trademarks covering goods of
the same class.
Parties filed a joint petition stipulating as to the
facts and submitting the case upon the issue of
whether or not, considering all the factors
involved, in both trademarks as the parties
would discuss in their memoranda, there will
be such confusing similarity between the two
trademarks as will be likely to deceive the
purchasing public.
The Director of Patents rendered a decision
granting the petition for registration and
dismissing the opposition, on the ground that, all
factors considered the trademarks in question are
not confusingly similar, so that the damage
feared by the oppositor will not result.
Hence, this petition.
Issue: W/N trademarks "BIOFERIN" and
"BUFFERIN", as presented to the public in their
respective labels, confusingly similar.
Held: No, the trademarks are not confusingly
similar.
In determining whether two trademarks are
confusingly similar, the test is not simply to take
their words and compare the spelling and
pronunciation of said words. Rather, it is to
consider the two marks in their entirety, as they
appear in the respective labels, in relation to the
goods to which they are attached.
Applying this test to the trademarks involved in
this case, it is at once evident that the Director of
Patents did not err in finding no confusing
similarity. For though the words "BIOFERIN"
and "BUFFERIN" have the same suffix and
similar sounding prefixes, they appear in their
respective labels with strikingly different
backgrounds and surroundings, as to color , size
and design.
Accordingly, taken as they will appear to a
prospective customer, the trademark in question
are not apt to confuse. Furthermore, the product
of the applicant is expressly stated as dispensable
only upon doctor's prescription, while that of
oppositor does not require the same. The chances
of being confused into purchasing one for the
other are therefore all the more rendered
negligible. Although oppositor avers that some
drugstores sell "BIOFERIN" without asking for a
doctor's prescription, the same if true would be
an irregularity not attributable to the applicant,
who has already clearly stated the requirement of
a doctor's prescription upon the face of the label
of its product.