Phillips Petroleum Company v. CJ Webb, Inc.
| Decision Date | 03 June 1971 |
| Docket Number | Patent Appeal No. 8525. |
| Citation | 170 USPQ 35,442 F.2d 1376 |
| Parties | PHILLIPS PETROLEUM COMPANY, Appellant, v. C. J. WEBB, INC., by change of name from Chas. J. Webb Sons Co., Inc., d.b.a. Corrosion Reaction Consultants, Appellee. |
| Court | U.S. Court of Customs and Patent Appeals (CCPA) |
Paul L. Gomory, Washington, D. C., Jack E. Phillips, J. Arthur Young and Donald J. Quigg, Bartlesville, Okl., attorneys of record, for appellant.
Edward C. Gonda, Arthur H. Seidel, Seidel, Gonda & Goldhammer, Philadelphia, Pa., attorneys of record, for appellee.
Before RICH, ALMOND, BALDWIN and LANE, Judges, and LANDIS, Judge, United States Customs Court, sitting by designation.
This appeal is from the decision of the Trademark Trial and Appeal Board, 158 USPQ 662 (1968), dismissing Phillips' opposition to the registration by Webb, application serial No. 247,757, filed June 10, 1966, of the trademark "CRC MARINE FORMULA 6-66" for "rust and corrosion inhibitor for protecting metal surfaces on boats and components thereof from the corrosive effect of salt air and/or salt water." One member of the board dissented. We reverse.
Phillips based its opposition on its registrations of "66" for marina services;1 for insecticides and for automobile radiator cleaners, stop-leaks and antifreezes;2 for glass and metal cleaners;3 for gasoline, lubricating motor oils, grease compounds for lubricating purposes, kerosene, tractor fuel oil, dripless penetrating oil and top cylinder lubricating oil;4 and for various other products which need not be specifically set forth here.
This case is an unusual one in that a prior opposition between the same parties resulted in the board's sustaining Phillips' opposition to the registration by Webb of the mark "6.66" for a rust and corrosion inhibitor, the board noting that that mark and "66" were "much too nearly alike to avoid a likelihood of confusion, mistake, or deception." Phillips Petroleum Co. v. Chas. J. Webb Sons Co., 150 USPQ 710, 712 (TTAB 1966). While the goods recited in the present application are slightly narrower in being limited to marine use, and a decimal point was used instead of a hyphen to separate the figures, appellee has not stressed the latter difference, and we find that the goods covered by the prior application are essentially the same as those described in the present application. Therefore, we take it as a premise that appellee could not have registered "6-66" for the goods in question here. The question is whether, by the addition of the words CRC MARINE FORMULA, the mark sought to be registered no longer so resembles "66" as to be likely to cause confusion as to source. We hold that confusion is still likely.
The record shows that Phillips' mark "66" is an old and very well-known mark for petroleum products. While the parties' channels of trade may vary somewhat, their goods are the type likely to be used by boat-owning consumers. Further, while Phillips does not have a registration of "66" specifically for rust or corrosion inhibitors, its cleaners and lubricants are sufficiently similar to rust and corrosion inhibitors that, if sold under the same trademark, confusion as to source would clearly be likely.
The board, while essentially agreeing with the foregoing statements regarding channels of trade and nature of the respective goods, concluded that the marks were different enough to obviate likelihood of confusion. The board stated, 158 USPQ at 664:
It is true that opposer\'s mark "66" is incorporated in applicant\'s mark, but it has been incorporated therein in such a manner as to lose its identity, per se, and to create a designation which is readily distinguishable therefrom in both sound and appearance and which creates a completely different commercial impression. It is therefore concluded that the overall differences between the marks are sufficient to obviate any likelihood of confusion or mistake as to the origin of the goods of the parties. See: Rockwood Chocolate Co., Inc. v. Hoffman Candy Company, 54 CCPA 1061, 372 F.2d 552, 152 USPQ 599 (1967).
We admit that on first sight the mark CRC MARINE FORMULA 6-66 bears little...
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