International Latex Corp. v. IB Kleinert Rubber Co., Patent Appeal No. 4108.

• Decision Date: 15 June 1939
• Docket Number: Patent Appeal No. 4108.
• Parties: INTERNATIONAL LATEX CORPORATION v. I. B. KLEINERT RUBBER CO.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

104 F.2d 382 (1939)

INTERNATIONAL LATEX CORPORATION v. I. B. KLEINERT RUBBER CO.

Patent Appeal No. 4108.

Court of Customs and Patent Appeals.

June 15, 1939.

Martin T. Fisher, of Washington, D. C. (Nims & Verdi and Percy E. Williamson, Jr., all of New York City, of counsel), for appellant.

Edwin Levisohn, of New York City (Harry Cohen, of New York City, of counsel), for appellee.

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

HATFIELD, Associate Judge.

This is an appeal in a trade-mark opposition proceeding from the decision of the Commissioner of Patents reversing the decision of the Examiner of Interferences dismissing appellee's notice of opposition and holding that appellant was entitled to the registration of its trade-mark for use on babies' rubber pants.

Appellant's mark consists of an outline drawing of two babies, clad in panties only. One of the babies is shown in profile, facing to the left, in a crawling or creeping posture. The second baby, at the right and to the rear of the first, is depicted in stooping position holding and stretching the garment on the first baby.

In its application for registration, filed January 3, 1936, appellant stated that it had used its mark on its goods since September 11, 1935. How extensively the mark has been advertised or used by appellant does not appear from the record, as no evidence was submitted by appellant.

Appellee's mark, which appellee used on babies' pants long prior to the first use by appellant of its mark, consists of a picture of a baby in a crawling or creeping posture with its back and rear toward the observer and its head turned so that it is looking back over its left shoulder facing the observer. The baby has bushy curly hair, and is clothed in a shirt and panties with a sock and shoe on one foot.

Appellee's mark was registered in the United States Patent Office May 31, 1927, on an application filed November 24, 1925.

It appears from the record that appellee's product is sold throughout the world, and that, since about 1921, its mark and its goods have been extensively advertised throughout the United States in magazines, newspapers, and other forms of advertising.

In his decision, the Commissioner of Patents stated, inter alia, that —

"The examiner of interferences seems to have taken the position that because of the nature of these marks the question of confusing similarity should be determined by different tests than those usually employed. He calls attention to the fact that `the differences between (human) forms are very small compared with resemblances,' and draws the conclusion that slight differences must therefore suffice to distinguish such forms, even when used as trademarks. I am unable to adopt this reasoning. Whether or not it be the representation of a human form, I doubt that the average purchaser pays sufficient attention to any trade-mark as to retain more than a vague impression of its details.

"Opposer's mark is a picture of a crawling baby. Applicant's mark is a picture of two babies, one of which is crawling. Placed side by side these marks could not possibly be confused, nor is it likely that a person thoroughly familiar with either would fail to distinguish the other. That, however, is not sufficient. If there is a reasonable probability that some purchasers would be deceived the second mark should not be registered. It seems to me there may be those who would retain only the impression of a crawling baby, and thus mistake applicant's goods for those of opposer. The question is a close one, but the doubt must be resolved in opposer's favor."

It is contended here by counsel for appellant that the marks of the parties are not confusingly similar; that the "fact that both marks display the human form of a crawling baby is not per se an indication of likelihood of confusion. Nor...