Application of West Point-Pepperell, Inc.

• Decision Date: 02 November 1972
• Docket Number: 8770.,Patent Appeal No. 8769
• Parties: Application of WEST POINT-PEPPERELL, INC.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

175 USPQ 558, 468 F.2d 200 (1972)

Application of WEST POINT-PEPPERELL, INC.

Patent Appeal Nos. 8769, 8770.

United States Court of Customs and Patent Appeals.

November 2, 1972.

Cushman, Darby & Cushman, Washington, D. C., attorneys of record, for appellant. C. Willard Hayes, James L. Dooley, William T. Bullinger, Washington, D. C., of counsel.

S. Wm. Cochran, Washington, D. C., for the Commissioner of Patents. Fred W. Sherling, Washington, D. C., of counsel.

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

RICH, Judge.

This appeal was taken from the decision of the Patent Office Trademark Trial and Appeal Board in consolidated appeals affirming the examiner's refusal of two registrations of very similar marks, applications serial No. 259,613 and serial No. 259,614, filed November 28, 1966, claiming first use October 25, 1966. The board decision is abstracted at 164 USPQ 250.

The marks sought to be registered both consist of the same elements, namely, a griffin design¹ of distinctive form and the words "West Point Pepperell." The only difference between the marks is that in serial No. 259,614 the word portion is all on one line and in serial No. 259,613 the words are arranged as shown in the following reproduction of the mark:

On the day of, but prior to, argument appellant withdrew its appeal and accepted the board's judgment, with prejudice, as to serial No. 259,614, appeal No. 8770. That appeal was therefore dismissed under date of October 10, 1972.

The goods named in the application are "non-woven and woven fabrics of natural and synthetic fibers and combinations thereof, both finished and unfinished; and sheets, pillow cases, blankets, towels, wash cloths, and toweling."

The rejection was based on a single reference, Reg. No. 517,955 of Nov. 22, 1949, on the Principal Register, to H. W. Schwab Textile Corp., of the words WEST POINT for "woolen piece goods."

We agree with the board that applicant's description of its goods encompasses woolen piece goods. The sole question is whether, within the meaning of § 2(d) of the Trademark Act (15 U.S.C. § 1052(d)), applicant's mark so resembles the registered mark "as to be likely * * * to cause confusion, or to cause mistake, or to deceive * * *." The examiner and the board were of the opinion that it does and so are we.

The examiner said in his Answer:

Purchasers might well suppose that woolen fabrics sold under the mark "West Point" and fabrics and blankets sold under the mark "West Point Pepperell" and design originate with the same producer.

The board said it was in full agreement with the examiner that the marks so resemble each other as to be likely to cause confusion or mistake or to deceive. Both the examiner and the board indulged in lines of legal reasoning, in addition to the above simply stated conclusions, with which appellant meticulously disagrees, perhaps with some justification. This is insufficient, however, to upset the result. The appeal is from the decision, not the opinion.

The main burden of appellant's argument is that the public would not be likely to confuse its mark, considered as a whole, with the mark of the reference, epitomized in the following paragraph:

No purchaser, in his or her right mind, upon seeing the

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