Mishawaka Rubber & Woolen Mfg. Co. v. HC Godman Co.

• Decision Date: 05 May 1941
• Docket Number: Patent Appeal No. 4481.
• Citation: 119 F.2d 425
• Parties: MISHAWAKA RUBBER & WOOLEN MFG. CO. v. H. C. GODMAN CO.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

119 F.2d 425 (1941)

MISHAWAKA RUBBER & WOOLEN MFG. CO. v. H. C. GODMAN CO.

Patent Appeal No. 4481.

Court of Customs and Patent Appeals.

May 5, 1941.

Eugene M. Giles, of Chicago, Ill. (Charles R. Allen, of Washington, D. C., of counsel), for appellant.

Warren H. F. Schmieding, of Columbus, Ohio (Watts T. Estabrook, of Washington, D. C., of counsel), for appellee.

Before GARRETT, Presiding Judge, and BLAND, HATFIELD, LENROOT, and JACKSON, Associate Judges.

GARRETT, Presiding Judge.

This is an appeal from the decision of the Commissioner of Patents in a proceeding which arose in the United States Patent Office wherein appellant opposed an application made by appellee for the registration of a trade-mark for boots and shoes. The decision of the commissioner affirmed the decision of the Examiner of Interferences dismissing the notice of opposition filed by appellant and adjudging applicant "entitled to the registration for which it has made application."

The respective marks were described by the Examiner of Interferences as follows:

"The mark shown in the application here involved comprises the notation `Bel-View' prominently displayed within a pair of approximately circular lines in association with the picture of a nurse's head and the disclaimed words `Nurse Oxford,' all upon a red panel. This panel, which is generally circular in form, has irregular edges, its outline somewhat resembling that of a wax impression seal.

"The mark here relied upon by the opposer, as described in Registration No. 36,471 pleaded by the latter, is the `representation of a circular figure or ball colored red.' This mark is applied in various sizes to opposer's goods and containers therefor in the manner shown, for example, by Exhibits 5 to 8."

It should be understood that appellant's trade-mark as registered consists solely of a disk or ball of a reddish color. In use it sometimes is accompanied by the words "Ball" and "Band," also by the notation "Ball-Band." When so accompanied, however, the words, which constitute no part of the registered mark, are not imposed upon the disk. Exhibits on file show that in some cases the word "Ball" appears to the left of the disk and the word "Band" to the right, while in other instances "Ball-Band" appears in arcuate arrangement above the disk.

Both parties sell boots and shoes to which the respective marks are applied. Their goods are not identical in type, but it is not questioned that they are of the same descriptive properties, nor is it questioned that appellant began the use of, and registered, its mark many years prior to any use by appellee of its mark. The question to be determined, therefore, is, as stated by the commissioner, "whether applicant's mark so nearly resembles the mark of opposer as to be likely to confuse the public or to deceive purchasers."

Both tribunals below were in agreement not only as to the conclusion but in the reasoning upon which that conclusion was based. The commissioner expressed the common view of both tribunals in the following terms:

"Their only resemblance is that in background applicant's mark is the same color, and roughly the same shape, as opposer's. This background, however, is obscured by other matter to such an extent that it becomes relatively insignificant. Regardless of testimony to the contrary, it is my opinion that applicant's mark is dominated by the nurse's head and the notation `Bel-View;' and I think those are the features that would impress the mind of the average purchaser.

"Obviously there could be no resemblance between the marks except in appearance; and as they differ sufficiently in that respect to insure against any reasonable likelihood of confusion, the opposition was properly dismissed."

In appealing to this court appellant presented a large number of reasons of appeal, many of them being conventional in character and requiring no specific attention.

The depositions of two persons connected with appellee's company were taken on its behalf and certain stipulated evidence was introduced on behalf of appellant.

It will be observed that in that part of his decision quoted, supra, the commissioner said, "Regardless of testimony to the contrary, it is my opinion that applicant's mark is dominated by the nurse's head and the notation `Bel-View;' and I think those are the features that would impress the mind of the average purchaser."

Several of the reasons of appeal relate to this holding and constitute the subject matter most strongly emphasized in appellant's brief before us. It is alleged that the commissioner erred "In relying on an inspection of the marks instead of the probable recollection thereof by ordinary purchasers"; "In ignoring and failing to give proper weight to the testimony"; "In disregarding the testimony that the red color is a distinctive feature of applicant's mark"; "In disregarding the testimony that the nurse's head is not a distinctive feature," and "In holding contrary to the proofs that the nurse's head and the notation `Bel-View' are the features of the applicant's mark that would impress the mind of the average purchaser."

The meaning of appellant's reason of appeal respecting the commissioner's holding based on "inspection of the marks instead of the probable recollection thereof by ordinary purchasers" is not clear to us. Probable recollection by ordinary purchasers is, at most, highly speculative and no testimony was offered to indicate what such recollection was or might be as to the marks here involved. That it is proper for the commissioner and the courts to inspect contesting marks and make visual comparison of them as an aid in determining the likelihood of confusion is a rule so...