American Products Co. v. Braithwaite, Patent Calendar No. 28.

• Decision Date: 27 November 1931
• Docket Number: Patent Calendar No. 28.
• Parties: AMERICAN PRODUCTS CO. v. BRAITHWAITE.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

53 F.2d 532 (1931)

AMERICAN PRODUCTS CO. v. BRAITHWAITE.

Patent Calendar No. 28.

Court of Customs and Patent Appeals.

November 27, 1931.

Walter F. Murray and Frank L. Zugelter, both of Cincinnati, Ohio (Charles D. Davis, of Washington, D. C., of counsel) for appellant.

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

LENROOT, Associate Judge.

This is an appeal from a decision of the Commissioner of Patents, affirming a decision of the examiner of interferences, dismissing an opposition filed by appellant against the application of appellee for registration of a trade-mark for a greaseless cleansing cream. The said mark consists of the words "Allsworth Sanlo Greaseless Cleansing Cream," in which the word "Sanlo" is prominently featured, the other words being disclaimed apart from the mark shown.

Appellant claims prior use, upon the same kind of goods, of a trade-mark consisting of the word "Zanol," which mark is the basis of the following registrations owned by appellant, and set up in its notice of opposition herein: 81,313, of March 21, 1911; 136,540, of November 2, 1920; 116,341, of April 24, 1917; 117,277, of June 26, 1917; 177,112, of December 11, 1923.

Appellant uses the mark "Zanol" upon a variety of cosmetics, food products, beverages, etc. Registration No. 117,277 is for said mark applied to a number of cosmetic preparations, medicines, etc. The date of issue is June 26, 1917, which is prior to the earliest date claimed by appellee, viz., August, 1921. Both the Examiner of Interferences and the commissioner found that the goods upon which the marks of the respective parties are used are of the same descriptive properties, and we agree with this finding.

The opposition is based upon the confusion in trade clause of section 5 of the Trade-Mark Act of February 20, 1905 (15 USCA § 85), and, the goods being of the same descriptive properties, the issue is whether the marks themselves are so similar as to be likely to cause confusion or mistake in the mind of the public, or to deceive purchasers.

There is found in the record a stipulation entered into between the parties hereto to the effect that if appellee were called as a witness he would give certain testimony which is set out in the stipulation.

Appellee filed no brief herein, and was not represented at the oral argument of this appeal.

While both the commissioner and the examiner held that the marks in issue were so dissimilar as to render confusion in trade improbable, we cannot assent to that view.

Each mark contains five letters; four of the five are common to both marks; the second and third letters of each mark, viz., "a" and "n" are the same and in the same order; the last...