American Drill Bushing Co. v. Rockwell Manufacturing Co.

• Decision Date: 08 April 1965
• Docket Number: Patent Appeal No. 7348.
• Citation: 342 F.2d 1019,52 CCPA 1173
• Parties: AMERICAN DRILL BUSHING COMPANY, Appellant, v. ROCKWELL MANUFACTURING COMPANY, Appellee.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

52 CCPA 1173, 342 F.2d 1019 (1965)

AMERICAN DRILL BUSHING COMPANY, Appellant, v. ROCKWELL MANUFACTURING COMPANY, Appellee.

Patent Appeal No. 7348.

United States Court of Customs and Patent Appeals.

April 8, 1965.

Vernon D. Beehler, Los Angeles, Cal., for appellant.

John D. Nies, Washington, D. C., for appellee.

Before RICH, Acting Chief Judge, and MARTIN, SMITH, and ALMOND, Judges, and Judge WILLIAM H. KIRKPATRICK.^*

MARTIN, Judge.

Appellant, American Drill Bushing Company (hereinafter American), has appealed from a decision adverse to it in two oppositions, Nos. 40,957 and 41,517. Appellant filed for registration of DELTA-GRIP, serial No. 106,304 filed October 13, 1960 for use on drill bushings, first use as of January 1, 1954 being alleged, and for registration of DELT A LINER,¹ serial No. 108,739 filed November 21, 1960 for use on drill bushings, drill blocks, and drill jigs,² first use in commerce as of October 4, 1960 being alleged.

Appellee Rockwell Manufacturing Company (hereinafter Rockwell) opposed on the basis of its registration and use of the mark DELTA as such or in combined forms DELTAGRAM, DELTA MILWAUKEE, DELTACRAFT, and DELTA ROCKWELL, for power tools of various types.³ After consolidation, testimony in the form of affidavits was taken by both parties. The board subsequently sustained the oppositions and refused the registrations sought by American. There is no issue of priority. The single issue is likelihood of confusion between the marks as applied to the respective goods of the parties.

A reproducible accuracy in drilling is called for in certain mass production manufacturing operations. To achieve such accuracy drill jigs are used. In such jigs the drill bit of the drill press is guided, as it is fed into the workpiece, through a hardened bushing cast into a block.

Appellant is a specialist in the manufacture of the drill bit guiding bushings, or drill bushings, and has sold them under a family of "A" marks, A, HEX A GRIP, SERR A GRIP, THERMA-GRIP,⁴ and now seeks registration of DELTA-GRIP⁵ and DELT A LINER for such bushings. The family of marks corresponds to different styles and types of bushings having reference to surface characteristics, textures and technical differences. The greatest users of appellant's bushings are large manufacturers which purchase them in quantity lots. Substantially 90% of the bushings under the mark DELTA-GRIP are sold at prices from $1.25 to $1.95 each. All of appellant's advertising is confined to trade journals.

Appellee has manufactured power tools, including drill presses and drill bits and other drill press components and accessories, since long prior to January 1, 1954 under the mark DELTA.⁶ During the period from 1947 through 1961, appellee has expended over eleven million dollars in the advertising of DELTA power tools of all types.

The board held the marks to be substantially similar, stating:

"Applicant\'s marks `DELTAGRIP\' and `DELT A LINER\' incorporate opposer\'s mark `DELTA\' in its entirety. The designation `DELTA\' or `DELT A\' is wholly arbitrary as applied to the goods of the parties."

Appellant contends that the marks are in fact distinct and different since it uses a three syllable combination in both DELTA-GRIP and DELT A LINER, as contrasted to appellee's use of DELTA alone. Appellant further contends that the two marks in issue are not arbitrary as the board found DELTA alone to be, but are suggestive, respectively, of a good grip in the drill block and of a bushing-liner.

We do not agree with appellant's contention and think the board was correct in its analysis in finding the marks substantially similar. Additionally, the GRIP and LINER portion of appellant's marks are, as a matter of degree, more descriptive than suggestive. In our view, this lends a high degree of dominance to the DELTA or DELT A portion of the mark, which in its pronunciation and arbitrary meaning, to a purchaser, is the same as appellee's mark DELTA.

It is fundamental, however, that identity or similarity of the marks alone is not enough to be conclusive of a likelihood of confusion. We must also consider the nature of the goods and the mark as applied thereto, the channels of trade, the class of purchasers, and other showings, such as, but not exclusively limited thereto, third party registrations, and absence of actual confusion.

Appellee contends that there is a relationship between the products of the parties. Appellant contends that the goods are in entirely different categories, it being...