Fleetwood Company v. Hazel Bishop, Inc.
Decision Date | 09 November 1965 |
Docket Number | No. 15053.,15053. |
Citation | 352 F.2d 841 |
Parties | The FLEETWOOD COMPANY, Plaintiff-Appellant, v. HAZEL BISHOP, INC., Defendant-Appellee. |
Court | U.S. Court of Appeals — Seventh Circuit |
James R. McKnight, Chicago, Ill., for appellant.
Warren D. McPhee, Chicago, Ill., M. Hudson Rathburn, Chicago, Ill., Mason, Kolehmainen, Rathburn & Wyss, Chicago, Ill., of counsel, for appellee.
Before HASTINGS, Chief Judge, and SCHNACKENBERG and SWYGERT, Circuit Judges.
In 1958, Hazel Bishop, Inc., defendant-appellee, applied for registration of its trademark TINTSTIK for a hair coloring preparation in stick form. The Fleetwood Company, plaintiff-appellant, filed an opposition proceeding in the Patent Office against the application for such registration, basing its opposition on Fleetwood's prior use and registration of TINTZ for hair coloring preparations and Fleetwood's purported prior use of TINTZ STICK for hair coloring touchup pencil.
The Patent Office Trademark Trial and Appeal Board, one member dissenting, found that Fleetwood had not shown a use of TINTZ STICK prior to Bishop's use of TINTSTIK and that there was no likelihood of confusion in the use of Bishop's trademark TINTSTIK with Fleetwood's concededly prior use of the trademark TINTZ. The Patent Office Board dismissed Fleetwood's opposition proceeding.
Fleetwood filed an action in the district court against Bishop for a trial de novo to review the ruling of the Patent Office Board, pursuant to 35 U.S.C.A. § 146 and 15 U.S.C.A. § 1071. After a trial, the district court found for Bishop and against Fleetwood, in effect affirming Bishop's registration of its trademark TINTSTIK, and entered judgment dismissing Fleetwood's action for review. Fleetwood appealed the judgment of dismissal.
The burden of Fleetwood's contention on this appeal may be summarized in the following manner. It has used and advertised its trademark TINTZ on hair preparations for over 25 years prior to Bishop's application in 1958. It has sold millions of dollars worth of TINTZ hair preparations throughout the country with a result that dealers recognize them as those of Fleetwood. It claims that new evidence before the district court established that it had also used TINTZ STICK in its advertisements as early as 1939. It asserts that when Bishop filed its application in 1958 for TINTSTIK, it knew of Fleetwood's prior TINTZ hair preparations on the market. It argues that when hair preparations are sold over the same counters in quick sales at low prices, TINTSTIK is so similar in sound to its TINTZ STICK and TINTZ that there is likelihood of confusion and Bishop's registration of TINTSTIK should be denied.
The district court entered findings of fact and stated its conclusions of law, based on the record before it. Rather than attempt to summarize such findings, we set out the following relevant and material facts as found by the trial court:
Among the conclusions of law stated by the district court are the following:
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