Campbell Products v. John Wyeth & Bro.

• Decision Date: 26 June 1944
• Docket Number: Patent Appeal No. 4905.
• Citation: 31 CCPA 1217,143 F.2d 977
• Parties: CAMPBELL PRODUCTS, Inc., v. JOHN WYETH & BRO., Inc.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

31 CCPA 1217, 143 F.2d 977 (1944)

CAMPBELL PRODUCTS, Inc., v. JOHN WYETH & BRO., Inc.

Patent Appeal No. 4905.

Court of Customs and Patent Appeals.

June 26, 1944.

Walter M. Fuller and E. W. Shepard, both of Washington, D. C., for appellant.

Thomas L. Mead, Jr., of Washington, D. C., for appellee.

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

BLAND, Associate Judge.

This is a United States Patent Office trade-mark opposition appeal. The appellant-applicant applied in the Patent Office for registration of the trade-mark "Alutropin." Appellee-opposer filed notice of opposition to the registration of said mark, basing its opposition upon the prior use and registration of its trade-mark "Alulotion". Priority of use by appellee is not disputed. Concerning appellant's mark, we quote the following from appellant's brief:

"Beginning in March, 1941, the Appellant-Applicant, Campbell Products, Inc., after extended investigation as to its merits by the Department of Therapeutics, New York University, College of Medicine and in the wards of Belleview Hospital, New York City * * * first marketed its trade-marked product `Alutropin,' in accordance with its invariable custom, as an ethical preparation solely through the medical profession * * *.

"Such medicinal product is a mouth-administered, nonpoisonous, collodial aluminum-hydroxide fortified with another of the Applicant's trade-marked products `Novatropine' (homatropinemethylbromide) for the treatment of peptic-ulcer and gastric hyperchlorhydria (hyperacidity), and it has been supplied in tall, 12-ounce, clear-glass, rectangular bottles bearing gray-and-blue labels describing the product and displaying in addition the following: `Warning: Use cautiously if dryness of the throat occurs: discontinue if rapid pulse or blurring of vision appears.' `Caution: To be used only on the prescription of a physician.' `Shake Well.' * * *

"Such long, narrow, substantially-rectangular labels * * * state no dosage or frequency of use because it is essential, for safety and for the preservation of the established good reputation of the Applicant's product, that these be determined by the physician, depending upon the condition of the patient, and specified in his required written prescription."

Opposer's registered mark is the word "Alulotion." It is pointed out by appellant that appellee's trade-marked product is a "poisonous, externally-applied lotion for the treatment of that repulsive, highly contagious, skin-disease Impetigo contagiosa * * *," and appellant states (the record is silent on the point) that in order to comply with the requirements of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.A. § 301 et seq., since the main ingredient of the product is poisonous mercury, appellee is required to state also, in connection with its mark, the following (which appears in the same size letters as the mark): "Ammoniated Mercury with Kaolin." Appellee's goods are sold upon physicians' prescriptions in a short, small, 3-ounce blue bottle, which does not disclose the exact color of its contents but makes the contents have the appearance of being milky and slightly darker than the product of appellant. The label on appellee's bottle is oval-shaped. Near the top the word "Wyeth's" appears in script. Below that is the word "Alulotion", with the notation "Reg. U. S. Pat. Off." in very small type. The latter notation is followed by the words "Ammoniated Mercury with Kaolin" in the same size type as the trade-mark. The label then points out the ingredients — ammoniated mercury 5%, Kaolin 15%, and aluminum hydroxide 2.3%. Then appears the statement, "Poison — External Use." There are other instructions as to use, and the injunction to shake well and to be used only on the prescription of a physician. Appellant states that appellee's lotion is used on the skin after removal of the scabs resulting from the disease.

The Examiner of Trade-mark Interferences held that there was no reasonable likelihood of confusion, dismissed the notice of opposition, and further adjudged that the appellant was entitled to register its mark. He had the following to say:

"These goods of the parties, while they are believed to possess the same descriptive properties, are thus specifically different medicinal preparations, and, other than that they contain an aluminum compound as a common ingredient, the differences therebetween in composition correspond to the wide differences in the respective essential properties and uses.

"The marks `Alutropin' and `Alulotion' here involved contain obvious resemblances. The terminal portions `Tropin' and `Lotion' constituting the major portions thereof, however, are quite different in significance and serve also to emphasize the differences in the properties and uses of the goods. When these differences in marks are viewed together with those present in the goods to which they are affixed, the examiner is persuaded that the marks may be concurrently used in trade without reasonable likelihood of confusion. Particularly so, since it is to be expected that products of this type will be sold under conditions which will greatly minimize any possibility of confusion or mistake. * * *"

Upon appeal, the First Assistant Commissioner of Patents (acting for the commissioner) reversed the decision of the Examiner of Trade-mark Interferences, held that the goods of the parties were of the same descriptive properties and that the trade-marks were confusingly similar, and sustained the opposition. 56 U.S.P.Q. 469. From the decision of the commissioner, appellant has here appealed.

Appellant argues that, by reason of the...