Mead Johnson & Co. v. American Home Products Corp.

• Decision Date: 29 June 1972
• Docket Number: Patent Appeal No. 8730.
• Citation: 59 CCPA 1082,461 F.2d 1381
• Parties: MEAD JOHNSON & COMPANY, Appellant, v. AMERICAN HOME PRODUCTS CORP., Appellee.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

59 CCPA 1082, 461 F.2d 1381 (1972)

MEAD JOHNSON & COMPANY, Appellant, v. AMERICAN HOME PRODUCTS CORP., Appellee.

Patent Appeal No. 8730.

United States Court of Customs and Patent Appeals.

June 29, 1972.

Weil, Lee & Bergin, New York City, attorneys of record, for appellant; Alfred T. Lee, New York City, of counsel. Mortimer Altin, New York City, attorney of record, for appellee.

Before RICH, ALMOND, BALDWIN, and LANE, Judges, and CLARK, Justice (Ret.), United States Supreme Court, sitting by designation.

LANE, Judge.

This is an appeal from the decision of the Trademark Trial and Appeal Board¹ dismissing an opposition to the registration of TEMPURETS for "analgesic tablets"² lodged by appellant, registrant of TEMPRA for an "analgesic and antipyretic (fever-reducing) preparation."³ We reverse.

Appellant applies TEMPRA to a medicinal product for the relief of pain and reduction of fever. While it has the same general utility as aspirin, it is composed of acetaminophen, an aspirin substitute. The drug is sold over the counter, and no prescription is required. It is marketed in syrup and drop form for infants and young children and in tablet form for older children and adults.

Appellee applies TEMPURETS to a drug having the same utility as TEMPRA, although appellee's product is an aspirin-based analgesic. Like TEMPRA, TEMPURETS are sold over the counter, without prescription, in dosages suitable for children.

The gist of appellant's opposition is that the contemporaneous use of TEMPRA and TEMPURETS on an analgesic for children marketed through essentially the same channels of trade on non-prescription basis would be likely to cause confusion, mistake or to deceive and that registration of TEMPURETS should accordingly be refused under § 2(d) of the Lanham Act, 15 U.S.C. § 1052(d). The board held to the contrary stating:

The marks "TEMPRA" and "TEMPURETS" are similar in that the first four letters thereof are identical. It is apparent, however, and opposer does not dispute, that these letters are suggestive of the fact that the products to which the marks are applied are indicated in the lowering of body temperatures, and, as further shown by the record in this case, they form the initial letters of a number of marks registered by third persons for medicinal preparations.

Considering the suggestiveness of the marks, and the substantial differences between them in sound and appearance, we are not persuaded that their contemporaneous use is reasonably calculated to cause confusion or mistake or to deceive.

On this appeal, appellee stresses that the board was correct in concluding that the common portion of the several marks is suggestive, that third-party registrations employing "TEMP" support that conclusion, that where the marks are suggestive of the goods, confusion is less likely, and that in any event, the marks "are not so similar as to be likely to lead to confusion." Appellant contends that the goods are directly competitive and that the marks are quite similar. Appellant does not believe that "TEMP"...