Crystal Corporation v. Manhattan Chemical Mfg. Co.

• Decision Date: 04 March 1935
• Docket Number: Patent Appeal No. 3416.
• Citation: 75 F.2d 506
• Parties: CRYSTAL CORPORATION v. MANHATTAN CHEMICAL MFG. CO., Inc.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

75 F.2d 506 (1935)

CRYSTAL CORPORATION v. MANHATTAN CHEMICAL MFG. CO., Inc.

Patent Appeal No. 3416.

Court of Customs and Patent Appeals.

March 4, 1935.

Edward S. Rogers, of New York City, Thomas L. Mead, Jr., of Washington, D. C., and Morris Hirsch, of New York City (William Walter Frankel and Franklin J. Foster, both of New York City, of counsel), for appellant.

Dante G. Galotta, of Washington, D. C. (John Paul Jones, of Washington, D. C., of counsel), for appellee.

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

BLAND, Associate Judge.

In the United States Patent Office the appellant instituted an opposition proceeding directed against the registration by appellee of the trade-mark "T. Z. L. B" for talcum powder for use on the human skin and especially for use in the nursery.

Appellant's opposition was grounded upon its prior adoption, use, and registration of its trade-mark "Z. B. T." for talcum powder. It claimed it adopted the mark "Z. B. T." in 1922 and registered the same in 1926. The application for the 1926 registration recites that the appellant is the owner of the trade-mark "Crystal Z. B. T." registered October 2, 1923.

The record shows that appellant's expenditure in advertisement between 1923 and 1931 has amounted to nearly one-third of a million dollars, and that appellee does not advertise its product except in catalogues; that appellant's sales from 1923 to the date of taking the testimony amounted to nearly 10,000,000 cans; that the products of both parties are sold in the same places, to the same class of trade, and for the same purposes; that the round, long tin cans in which the powder is sold by both parties are made by the same manufacturer; and that in shape and size there is a close resemblance between the packages sold.

Appellee claims use of its mark since 1924. Prior to 1924, appellee was engaged in manufacturing and selling a number of brands of toilet powder under the tradenames "French Bouquet," "Rose and Violet," "Ming," "Darling Baby," and "Whitmans." Its baby powder so used was composed of three basic ingredients. It is claimed by appellee that in 1924 it added an additional ingredient to its new baby powder which brought about the adoption of the four-letter trade-mark, each letter representing one of the basic ingredients.

The sole question presented here is whether or not there is sufficient similarity between the marks as to justify sustaining the opposition on the ground of probability of resulting confusion.

Appellant has shown that from 1922 it advertised its product as "Z. B. T." and that appellant and others used the term "Z. B. T." in correspondence without associating with it the word "Crystal." Appellant did not prove that prior to appellee's adoption of its mark "T. Z. L. B" it ever used in a trade-mark sense the letters "Z. B. T." by themselves. It did show, however, that in the use of the mark at the time appellee adopted its four-letter mark, it printed the term "Crystal" in very small and inconspicuous letters, and the letters "Z. B. T." in large, bold letters; that its product was referred to as "Z. B. T." It is also shown that in 1921 appellant's powder was sold in a paper can with metal top and bottom, similar in size to the can now sold, which contained the term "Crystal Z. B. T.," the word "Crystal" being printed in substantially the same sized letters as the capital letters "Z. B. T." It is then shown that between that date and the date of the registration of the "Z. B. T." mark in 1926, it gradually made the word "Crystal" smaller and less conspicuous and emphasized and made larger the letters "Z. B. T."

The Commissioner of Patents affirmed the decision of the Examiner of Interferences, which dismissed the notice of opposition, and it is from the decision of the Commissioner that appellant-opposer has appealed to this court.

Opposer argues the question here as if the issue were confined to the confusing similarity on identical goods of the letters "Z. B. T." and the letters "T. Z. L. B", printed with the same sized type. That is hardly the question presented since, as has been hereinbefore stated, appellee began its use of its mark prior to any trade-mark use by appellant of the "Z. B. T." letters unaccompanied by the term "Crystal." It seems to us that the question presented is: Is the mark "T. Z. L. B" so similar to the mark "Crystal Z. B. T.," as the latter was used when appellee adopted its mark, as is hereinbefore shown, as to cause confusion, or is there reasonable doubt on the question of confusion?

It unquestionably appears that the letters "Z. B. T."...