Eureka Williams Corp. v. Willoughby Mach. & Tool Co.
Decision Date | 14 March 1952 |
Docket Number | Patent Appeal No. 5835. |
Citation | 194 F.2d 543 |
Parties | EUREKA WILLIAMS CORP. v. WILLOUGHBY MACH. & TOOL CO. |
Court | U.S. Court of Customs and Patent Appeals (CCPA) |
E. J. Balluff, Detroit, Mich. (Francis D. Thomas, Washington, D. C., of counsel), for appellant.
Michael Williams, Warren, Ohio (Russel N. Low, Washington, D. C., of counsel) for appellee.
Before GARRETT, Chief Judge, and JACKSON, O'CONNELL, JOHNSON, and WORLEY, Judges.
This opposition was instituted in the Patent Office on January 10, 1948, by appellant, owner of the trade-mark "Oil-O-Matic," against appellee, owner of the mark "Thermomatic," which appellee sought to register and apply in the sale of gas conversion burners having automatic and thermostatic controls. Appellant's mark had been previously registered and used by it and its predecessor in interest since June 16, 1925, and applied throughout the nation and among other nations in the sale of goods of the same descriptive properties. Appellant relied on prior use of its mark since January 15, 1920, while appellee asserted use of its mark since January 17, 1946.
The Examiner of Interferences sustained appellant's opposition on the ground that appellee's mark was confusingly similar to that of appellant. On appeal, the Assistant Commissioner of Patents, acting for the commissioner, reversed the decision and held that when the contested marks are considered in their entireties, there is no such resemblance between them as to indicate any likelihood of confusion as to the origin of the goods when concurrently applied to those of the respective parties. From that decision this appeal was taken.
The proceedings in the Patent Office and the appeal here have been conducted under the provisions of the Trade-Mark Act of 1905, now 15 U.S.C.A. § 1051 et seq. Before the tribunals of the Patent Office the respective parties each cited a group of prior adjudications as to the registrability of other contested marks. The examiner adopted those cited by the opposer in sustaining its position while the commissioner adopted the applicant's citations in reversing the examiner.
This court has repeatedly held that because of the difference of facts in various cited cases, such cases are without controlling value here, except as to the principles of trade-mark law enunciated or exemplified therein. On the latter basis, however, this and other federal courts have always had, and will continue to have, recourse to such citations.1
In an opposition proceeding under the act of 1905 the validity of an opposer's previously registered mark cannot be challenged.2 Moreover, confusing similarity is by no means the sole ground upon which the registration of an applicant's mark may be rejected under section 5 of that act.
The Examiner of Interferences held on the record presented that the term "omatic," identical with both marks, was the predominant feature of the contested marks and the only one capable of indicating origin of the respective goods3 which, concededly, are goods of the same descriptive properties:
Appellee in addressing its appeal to the Commissioner of Patents assigned the finding of the examiner hereinbefore set forth as one of the reasons of appeal upon which the applicant relied. That contention was thus disposed of in the decision of the commissioner:
The following pertinent definitions are quoted from Webster's New International Dictionary, Second Edition, 1949:
Appellant moved without success for reconsideration of the commissioner's peculiar holding on the point in question. There is...
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...in the Willoughby case, supra, was in turn reversed by a divided opinion of this court. Eureka Williams Corporation v. Willoughby Machine and Tool Company, 194 F.2d 543, 544, 39 C.C.P.A., Patents, While in that case two members of this court disagreed with the conclusion of the majority tha......
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...the origin of the goods was apt to result. On appeal here, we reversed that holding by a divided court. Eureka Williams Corporation v. Willoughby Machine and Tool Co., 194 F.2d 543, 39 C.C.P.A., Patents, Appellant relies on our decision in that case as authority for the proposition that the......
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