Clifton v. Plough, Inc.

• Decision Date: 04 March 1965
• Docket Number: Patent Appeal No. 7341.
• Citation: 341 F.2d 934
• Parties: C. L. CLIFTON, Sr., d. b. a. R & M Laboratories of Georgia, Appellant, v. PLOUGH, INC., Appellee.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

341 F.2d 934 (1965)

C. L. CLIFTON, Sr., d. b. a. R & M Laboratories of Georgia, Appellant, v. PLOUGH, INC., Appellee.

Patent Appeal No. 7341.

United States Court of Customs and Patent Appeals.

March 4, 1965.

Patrick F. Henry, Atlanta, Ga., for appellant.

William E. Bush, Ronald D. Garber, Memphis, Tenn., for appellee.

Before WORLEY, Chief Judge, and RICH, MARTIN, SMITH, and ALMOND, Judges.

ALMOND, Judge.

C. L. Clifton, Sr., doing business as R & M Laboratories of Georgia (hereinafter referred to as "appellant"), filed application¹ to register "NUMOL" for a pharmaceutical product for the relief of coughs, colds and bronchial irritations, asserting use since June 18, 1944.

Registration has been opposed² by Plough, Inc. (hereinafter referred to as "appellee"), registrant of "NUJOL" for mineral oil for chemical, medicinal and pharmaceutical uses other than the treatment of constipation;³ for mineral oils and compounds, emulsions and mixtures of mineral oils with other substances for medicinal purposes;⁴ and for mineral oils, compounds, emulsions, and mixtures of mineral oils with other substances for chemical, medicinal and pharmaceutical purposes, and for battery sealing compounds.⁵

The relevant facts as found by the board from the exhibits and testimony of record were in substance as follows:

Appellee's business is that of selling proprietary drugs directly to retailers comprising drug, variety and country stores and food supermarkets, as well as drug and grocery wholesalers and candy and tobacco jobbers. On January 25, 1954, appellee purchased the mark "NUJOL" and the rights associated therewith from Esso Standard Oil Company and has used said mark for mineral oil since February 1954. Since acquisition of the mark, appellee's sales of mineral oil thereunder, foreign and domestic, have exceeded $4,000,000. Promotion has been through radio, newspaper and other advertising at a cost approximating $300,000.

Appellant's pharmaceuticals sold under the mark "NUMOL" are used as a rubefacient and as an inhalant. Its sales have been predominantly local approximating annually ten thousand dollars, with interstate sales being small in volume. The product is not advertised to the general public but "detailed" to physicians with listings in the "RED BOOK" and "BLUE BOOK" directories since 1959.

The mark "NUMOL" did not originate with appellant. The mark and the product which appellant sells thereunder emanated through Michigan and Georgia concerns with ownership lodging in appellant by acquisition on January 1, 1958 and September 22, 1958. Appellee's prior rights are established by its registrations.

Considerable testimony-in-chief and in rebuttal was taken by the parties in support of their respective contentions relative to the issue of likelihood of confusion. This testimony for appellee, in the main, came from appellee's employees, professional investigators, a retail druggist, and an official of a drug wholesaler.

Appellant's testimony consists of that of a professional investigator, employees of a wholesale drug concern, and a number of pharmacists.

As did the board, we have thoroughly scrutinized the testimony of investigators who entered drug stores and asked in some cases for "NUMOL" and in others for "NUJOL." We do not deem it necessary to recite it in detail. In general terms, the testimony shows that the investigators did not always get what they asked for. It is highly inconclusive in support or negation of the conflicting contentions of either part...