Crime Confessions v. Fawcett Publications, Patent Appeal No. 4788.

• Decision Date: 07 December 1943
• Docket Number: Patent Appeal No. 4788.
• Citation: 139 F.2d 499
• Parties: CRIME CONFESSIONS, Inc., v. FAWCETT PUBLICATIONS, Inc.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

139 F.2d 499 (1943)

CRIME CONFESSIONS, Inc., v. FAWCETT PUBLICATIONS, Inc.

Patent Appeal No. 4788.

Court of Customs and Patent Appeals.

December 7, 1943.

Joseph Schultz, of New York City (Henry E. Schultz, of New York City, of counsel), for appellant.

Asher Blum, of New York City (Hugo Mock, of New York City, of counsel), for appellee.

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

BLAND, Associate Judge.

The appellant herein made application in the United States Patent Office for the registration of the term "Crime Confessions" as a trade-mark for a magazine. The appellee filed notice of opposition to the registration based upon its prior ownership and use of the registered trade-marks "True Confessions," "Heart Confessions," and "Romantic Confessions," all for periodical magazines published and sold in interstate commerce. In the proceedings in the Patent Office and before this court, appellee relied chiefly upon its trade-mark "True Confessions," registered under the Trade-Mark Act of 1905 as No. 163,713, January 23, 1923, and later renewed, though it called attention to its ownership of the other two trade-marks "Heart Confessions" and "Romantic Confessions."

Appellants alleges use of its mark "Crime Confessions" since March 1939.

The Examiner of Interferences, believing that there would be no likelihood of confusion in trade, dismissed the notice of opposition and adjudged that the applicant was entitled to registration of its said mark.

The Commissioner of Patents reversed the decision of the Examiner of Interferences and sustained the opposition. Appellant has here appealed from the decision of the commissioner.

Appellant contends, first, that the marks are so dissimilar as to justify the conclusion that there is no reasonable probability of confusion in trade as a result of concurrent use of the marks involved; second (we quote from appellant's brief), that "The general rules relating to trademarks have been modified and relaxed when applied to magazine titles. Similarity in this type of mark is the rule rather than the exception"; third (again quoting from appellant's brief), that the "Opposer-appellee should not be permitted to appropriate for its exclusive use the generic word `Confessions', which has become purely descriptive of a type or character of magazine rather than any single publication in the field"; and fourth, that appellee has taken a position here inconsistent with its prior position taken in the Patent Office with respect to its registration of "Heart Confessions" when the mark "Love Confessions" was cited as an objection to registration.

In oral argument the character of the two marks "True Confessions" and "Crime Confessions," with reference to their descriptiveness, was discussed. The argument would seem to go to the question of the registrability of either of the marks. This consideration, and appellant's second contention with reference to the distinction that should be made between trade-marks for magazines and other publications and ordinary trade-marks, would seem to require that we consider that question first.

On a number of occasions in cases similar to that at bar we have been confronted with the same question we are considering here, and we recognize that such marks as "Popular Mechanics," involved in Fawcett Publications, Inc., v. Popular Mechanics Co., 58 F.2d 838, 19 C.C.P.A., Patents, 1241, "Popular Photography," involved in American Photographic Publishing Co. v. Ziff-Davis Publishing Co., 127 F.2d 308, 29 C.C.P.A., Patents, 1014; and "Architecture," involved in Architectural Catalog Co., Inc., v. F. W. Dodge Corporation, 136 F.2d 1008, 1009, 30 C.C.P.A., Patents, 1215, suggest the proposition that there may be some anomaly in applying the same rule in construing the Trade-Mark Act of 1905, 15 U.S.C.A. § 81 et seq., as applicable alike in all respects to both ordinary marks and those used in connection with publications.

In the Architectural Catalog Co. case, supra, where the mark sought to be registered was "Architecture and Design" and the registration was opposed by the owner of the marks "Architecture," "The Architectural Record," "The American Architect," and "American Architect and Architecture," we heard the same argument, substantially, as that which appellant here stresses under its second contention. There we found it sufficient to say:

"It is well known that there are published throughout the United States many newspapers, magazines, and other periodicals which bear, in whole or in part, the same titles. In what number titles of such publications have been registered as...