Kemin Industries, Inc. v. Flavor Corporation of America, Patent Appeal No. 8436.

Citation440 F.2d 1375,58 CCPA 1180
Decision Date13 May 1971
Docket NumberPatent Appeal No. 8436.
PartiesKEMIN INDUSTRIES, INC., Appellant, v. FLAVOR CORPORATION OF AMERICA, Appellee.
CourtUnited States Court of Customs and Patent Appeals

Donald H. Zarley, Bruce W. McKee, Dennis L. Thomte, Des Moines, Iowa, attorneys of record, for appellant.

Malcolm McCaleb, William E. Lucas, Chicago, Ill., for appellee. Horton, Davis, McCaleb & Lucas, Chicago, Ill., of counsel.

Before RICH, ALMOND, BALDWIN and LANE, Judges, and DURFEE, Judge, United States Court of Claims, sitting by designation.

BALDWIN, Judge.

Kemin Industries, Inc. appeals from the decision of the Trademark Trial and Appeal Board1 granting the petition of Flavor Corporation of America to cancel the registration2 on the Supplemental Register of Kemin's mark "Lure" for a "Flavoring Additive for Animal Feeds."

The board granted cancellation on the basis of Flavor Corporation's prior use and registration of "Pestlur"3 for "Flavoring Materials Used in the Manufacture of Rodenticides." It regarded "Lure" to so resemble the registered mark "Pestlur" as to be likely, when applied to Kemin's goods, to cause confusion, or to cause mistake, or to deceive. 15 U.S.C. § 1052(d).

Briefly, the record shows that both Kemin and Flavor Corporation are engaged in the manufacture and marketing of flavor additives. In particular, Flavor Corporation sells a varied line of flavoring additives to animal feed manufacturers, as well as to pesticide or rodenticide manufacturers, for incorporation in their respective products to assist in attracting the particular animal or pest to the feed material or stimulating its appetite for it. Since 1956, Flavor Corporation has associated the mark "Pestlur" with one such flavor additive it has sold to pesticide and rodenticide manufacturers. Similarly, Kemin founded by a former salesman and acting sales manager of Flavor Corporation, sells a line of flavorings to animal feed manufacturers, and has applied the mark "Lure" to such flavoring since early 1962. It also has sold a small quantity of rodenticide flavoring under the mark "Rat Lure". The record supports the board's finding that:

* * * flavorings for rodenticides and flavorings for animal feeds are to some extent at least promoted through a common trade publication, and that at least one manufacturer of animal feeds also makes rodenticides and hence would be a prospective purchaser for the flavoring additives of both parties. Moreover, there is no support in the record for respondent\'s contention that purchasers of such goods are discriminating as to trademarks.

Appellant's principal argument here is that the board erred in failing to distinguish between the "vastly different" channels of trade for the rodenticide flavorings of Flavor Corporation and the animal feed flavorings of Kemin, and in concluding that the respective goods of the parties are purchased by the same class of purchasers. The "vast" difference in trade channels and...

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4 cases
  • Flavor Corporation of America v. Kemin Industries, Inc.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • March 11, 1974
    ...and on May 6, 1971 the CCPA found "no error" in the TTAB decision, affirming the cancellation order. Kemin Industries, Inc. v. Flavor Corp. of America, 440 F.2d 1375, 58 CCPA 1180 (1971). FCA promptly filed this action in the Northern District of Illinois; venue was subsequently transferred......
  • Flavor Corporation of America v. Kemin Industries, Inc., Civ. No. 11-409-C-1.
    • United States
    • U.S. District Court — Southern District of Iowa
    • March 12, 1973
    ...basis of "PESTLUR" but did not consider the propriety of the Board's reliance on "FISHLUR" and "RODENTLUR". Kemin Industries, Inc. v. Flavor Corporation of America, 440 F. 2d 1375. Less than one month later this action was commenced in the Northern District of RES JUDICATA OR COLLATERAL EST......
  • Glenwood Laboratories, Inc. v. American Home Prod. Corp.
    • United States
    • U.S. Court of Customs and Patent Appeals (CCPA)
    • April 20, 1972
    ...(1958); American Throwing Co., Inc. v. Famous Bathrobe Co., Inc., 250 F.2d 377, 45 CCPA 737 (1957); Kemin Industries, Inc. v. Flavor Corp. of America, 440 F.2d 1375, 58 CCPA 1180 (1971); Geigy Chemical Corp. v. Atlas Chemical Industries, Inc., 438 F.2d 1005, 58 CCPA 972 Furthermore, in view......
  • Technitrol, Inc. v. Control Data Corporation, Civ. A. No. 17653.
    • United States
    • U.S. District Court — District of Maryland
    • May 13, 1975
    ... ... Patent No. 2,611,813 (the '813 patent) for "Magnetic ... ...

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