Buckeye Soda Co. v. Oakite Products, Patent Appeal No. 2901.

• Decision Date: 28 March 1932
• Docket Number: Patent Appeal No. 2901.
• Parties: BUCKEYE SODA CO. v. OAKITE PRODUCTS, Inc.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

56 F.2d 462 (1932)

BUCKEYE SODA CO. v. OAKITE PRODUCTS, Inc.

Patent Appeal No. 2901.

Court of Customs and Patent Appeals.

March 28, 1932.

Henry C. Thomson and Charles D. Woodberry, both of Boston, Mass. (A. V. Cushman of Washington, D. C., of counsel), for appellant.

Louis Alexander, of New York City, for appellee.

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

HATFIELD, Associate Judge.

This is an appeal in a trade-mark cancellation proceeding from the decision of the Commissioner of Patents reversing the decision of the Examiner of Interferences dismissing appellee's application for the cancellation of appellant's registration No. 225,151, issued March 15, 1927, for the trade-mark "Novite" for use on "washing soda."

Appellee is the owner of registration No. 80,287, issued November 29, 1910, to appellee's predecessor, the Oakley Chemical Company, for the trade-mark "Oakite" for use on "a granulated chemical cleansing compound."

It is conceded by counsel for appellant that the goods of the respective parties possess the same descriptive properties, and that appellee used its mark "Oakite" long prior to appellant's adoption and use of the mark "Novite."

The sole issue in the case is whether appellant's registered mark "Novite" so nearly resembles appellee's registered mark "Oakite" as to be likely to cause confusion or mistake in the mind of the public or to deceive purchasers.

The Examiner of Interferences held that the marks were not confusingly similar.

The Commissioner of Patents held that the marks were confusingly similar, reversed the decision of the Examiner of Interferences, sustained the petition for cancellation, and ordered appellant's registration cancelled.

It appears from the record that appellee has expended a large sum of money, about $2,000,000, in advertising its trade-mark and its product in "newspapers, trade-magazines, radio, car cards, posters in elevated and subway stations, food fairs and exhibits, window posters, and counter displays," substantially throughout the United States, and that its sales amount to approximately $2,000,000 per year. It further appears from the record that the goods of the respective parties are competitive, and are sold in small packages in grocery, department, and hardware stores.

It is contended by counsel for appellant that the only similarity in the marks is the suffix "ite"; that the prefix "Nov" of appellant's mark does not resemble the prefix "Oak" in appellee's mark; and that therefore the marks are not confusingly similar. Counsel for appellant further contends that, if the involved marks are confusingly similar, appellee's mark is confusingly similar to the registered mark "Orite," owned and used by a third party upon a gun cleaning and lubricating material, and that therefore "appellee has...