531 F.2d 561 (Fed. Cir. 1976), 75-619, Morton-Norwich Products, Inc. v. S. C. Johnson & Son, Inc.

Docket Nº:Patent Appeal No. 75-619.
Citation:531 F.2d 561, 189 U.S.P.Q. 413
Party Name:MORTON-NORWICH PRODUCTS, INC., Appellant, v. S. C. JOHNSON & SON, INC., Appellee.
Case Date:April 08, 1976
Court:United States Court of Customs and Patent Appeals
 
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Page 561

531 F.2d 561 (Fed. Cir. 1976)

189 U.S.P.Q. 413

MORTON-NORWICH PRODUCTS, INC., Appellant,

v.

S. C. JOHNSON & SON, INC., Appellee.

Patent Appeal No. 75-619.

United States Court of Customs and Patent Appeals.

April 8, 1976

Anthony J. Franze, Norwich, N.Y., attorney of record, for appellant.

Robert M. Newbury, Chicago, Ill. (Pattishall, McAuliffe & Hofstetter) Chicago, Ill., attorneys of record, for appellee. Harold F. Greiveldinger, H. Leroy Richards, Ralph H. Lane, Racine, Wis., of counsel.

Before MARKEY, Chief Judge, and RICH, BALDWIN, LANE and MILLER, Judges.

Page 562

MILLER, Judge.

This appeal is from the decision of the Trademark Trial and Appeal Board 1 sustaining appellee's opposition No. 53,989, filed February 20, 1973, against application serial No. 405,487, filed October 19, 1971, for registration of RAINFRESH for liquid detergents. We affirm.

Appellee's uncontroverted evidence establishes that it is the prior user of the mark RAIN BARREL for a fabric softener; that RAIN BARREL is sold and advertised nationally; that sales of RAIN BARREL have exceeded $39 million and advertising and promotional expenditures have exceeded $13 million since its introduction into the marketplace in 1970; that RAIN BARREL is advertised as and capable of being used in the laundry wash cycle with a detergent, and that appellee's advertising has consistently claimed that RAIN BARREL makes clothes 'rainwater soft, rainwater fresh.'

Appellant has since 1971 been making token shipments 2 of liquid dishwashing detergent under the mark RAINFRESH. As noted by the board, however, the description of goods in appellant's application encompasses a liquid laundry detergent that could be used with appellee's fabric softener during the wash cycle; furthermore, the parties' goods move through the same channels of trade to the same customers. It found, therefore, that the parties' goods are closely related. The board referred to the common use of 'Rain' and said that the marks create substantially similar commercial impressions--the concepts of softness and freshness of rainwater--especially in view of appellee's consistent advertising use of 'rainwater soft, rainwater fresh.' Accordingly, considering the marks in their entireties, the board concluded 'that applicant's mark so resembles opposer's previously used trademark as to be likely, when applied to applicant's...

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