General Shoe Corporation v. Hollywood-Maxwell Co., Patent Appeal No. 6469.

• Decision Date: 12 April 1960
• Docket Number: Patent Appeal No. 6469.
• Parties: GENERAL SHOE CORPORATION v. HOLLYWOOD-MAXWELL CO.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

125 USPQ 443, 277 F.2d 169 (1960)

GENERAL SHOE CORPORATION v. HOLLYWOOD-MAXWELL CO.

Patent Appeal No. 6469.

United States Court of Customs and Patent Appeals.

April 12, 1960.

Smith, Kilpatrick, Cody, Rogers & McClatchey, Atlanta, Ga. (Ernest P. Rogers, Atlanta, Ga., of counsel), for appellant.

John Flam, Los Angeles, Cal., for appellee.

Before WORLEY, Chief Judge, and RICH, MARTIN, SMITH, and JOHNSON, retired, Associate Judges.

WORLEY, Chief Judge.

Appellant owns and is the prior user of the trademark "Ingenue" on shoes and hosiery.¹ Appellee seeks registration of the identical mark for use on brassieres. The Commissioner, through the Assistant Commissioner, overruled appellant's protest that concurrent use of the mark would be likely to result in confusion within the meaning of Section 2(d) of the Lanham Act (Trademark Act of 1946), 15 U.S.C.A. § 1052(d).²

The relevant facts are well summarized, and the grounds for overruling the protest are clearly stated in the decision below. We take the liberty of quoting at length therefrom.

"From the record it appears that opposer uses the mark `Ingenue\' only on women\'s shoes. It has so used it since 1930, and during the twenty-six year period of use more than five million dollars\' worth of shoes bearing the mark have been sold and in excess of a half million dollars have been spent in advertising shoes under the mark.

"In August of 1935 applicant commenced using `Ingenue\' as a trademark for brassieres and has continuously used it since that time, having sold more than thirty-seven thousand brassieres under the mark during the two-year period preceding the execution of the stipulation. Applicant first registered `Ingenue\' as a part of the composite mark `V-Ette Ingenue\' in 1937.

"Neither party knows of any instance in which, by reason of applicant\'s use of `Ingenue\' on brassieres, purchaser confusion has resulted."

The Examiner of Interferences stated, and I agree, that,

"It is manifest that shoes and brassieres have nothing whatever in common with respect to their essential characteristics and sales appeal, and while they are frequently found in the same stores, they are customarily sold in different departments thereof. Furthermore, it is more or less a matter of common knowledge that manufacturers of shoes do not ordinarily manufacture other articles of apparel * * *."

Appellant challenges the above reasoning, pointing out that both articles are women's apparel; that they are sold to the same class of purchasers; that they are commonly sold through the same channels of trade; and that under such circumstances the average purchaser would assume that when such articles bear the identical trademark they emanate from the same source.

Appellant also disputes the accuracy of what appears to be the second ground of the Commissioner's decision, stating that

"The Assistant Commissioner indulges the further unsupported and unjustifiable conclusion that `It is more or less a matter of common knowledge that manufacturers of shoes do not ordinarily manufacture other articles of apparel and vice versa.\'"

"The ordinary citizen could not tell, if his life depended upon it, who manufactures the `Florsheim,\' `Jarman,\' `W. L. Douglas,\' `Thom McAnn,\' or `I. Miller\' shoes. As a matter of fact, it is highly unlikely that either the Examiner of Interferences or the Honorable Assistant Commissioner of Patents would have any precise information or knowledge with respect thereto, even though their official duties tend to give them more extensive knowledge of such matters."

On the facts here, we are inclined to agree with appellant that concurrent use of "Ingenue" on the instant articles would likely result in the confusion contemplated by the statute.

If we were dealing with the same mark on such widely different articles as, for example, a woman's eyebrow pencil and a farm tractor there would be no problem. But when the articles have as much in common as is the case here, the likelihood of confusion is increased.

The reasoning in In re Keller, Heumann & Thompson Co., Inc., 81 F.2d 399, 401, 23 CCPA 837, with respect to the relationship between men's shoes and clothing appears to be equally appropriate with respect to women's shoes and brassieres:

"* * * Both are within

...