Izod, Ltd. v. ZIP HOSIERY COMPANY

• Decision Date: 09 January 1969
• Docket Number: Patent Appeal No. 8070.
• Citation: 405 F.2d 575,160 USPQ 202
• Parties: IZOD, LTD., Appellant, v. ZIP HOSIERY COMPANY, Inc., Appellee.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

160 USPQ 202, 405 F.2d 575 (1969)

IZOD, LTD., Appellant, v. ZIP HOSIERY COMPANY, Inc., Appellee.

Patent Appeal No. 8070.

United States Court of Customs and Patent Appeals.

January 9, 1969.

Seidel & Gonda, Edward C. Gonda, Ronald L. Panitch, Philadelphia, Pa., for appellant.

Wood, Herron & Evans, Bruce Tittel, Cincinnati, Ohio, for appellee.

Before WORLEY, Chief Judge, and RICH and ALMOND, Judges.

ALMOND, Judge.

Izod, Ltd. appeals from the decision of the Trademark Trial and Appeal Board¹ dismissing its opposition to the trademark application² of Zip Hosiery Company, Inc., appellee, for registration of the mark "TIGER HEAD" for men's work socks. Appellant relies upon its prima facie rights established by ownership of its registration³ on the Principal Register of a configuration asserted to be a tiger head, reproduced here, for men's outer shirts and ladies' outer shirts.

Neither party took testimony.

Appellee, applicant below, on January 13, 1966 filed a motion to dismiss, asserting that:

* * * if the registration 692,842 were considered to display a tiger it cannot necessarily be considered to be a display which would be termed a tiger\'s head.

Appellee took the position that opposer's mark could also be described as "wild tiger," "snarling tiger," "angry tiger" and many others.

On January 27, 1966 the board denied appellee's motion to dismiss, stating that:

* * * considering the character of the respective marks and goods, which consists of a replica of a head of a tiger, as applied to men\'s outer shirts and ladies\' outer shirts, and the designation "TIGER HEAD", as applied to men\'s work socks, it is believed that the issue of likelihood of confusion is sufficiently debatable to warrant that the case continue to final hearing for a consideration of the merits in connection with the arguments of the parties and any evidence which applicant may elect to introduce. Emphasis supplied.

Subsequently briefs were filed on behalf of each party, the appellee not electing, however, to introduce any evidence as suggested, at least by implication, by the board. We think this implication finds support in the tentative finding of the board that appellant's mark "consists of a replica of a head of a tiger" as applied to appellant's goods. On the basis of the issue thus stemming from the record, as it stood on appellee's motion to dismiss, the board proceeded to final disposition, holding that in view of the differences between the involved marks there is not a likelihood of confusion, stating:

The real question is what is the opposer\'s mark? It is apparent that it is the head of a feline animal. Is it the head of a tiger? Carefully considering and evaluating the opposer\'s mark, it cannot be said with any surety that opposer\'s mark represents a tiger head — it may well represent to the purchasing public a wildcat, an ocelot or some other variety of a feline animal. That is to say, opposer\'s mark does not immediately and unequivocally suggest a tiger head. On the basis of the record, we are not persuaded that applicant\'s mark is the literal equivalent of opposer\'s mark.

We take cognizance of, but are not persuaded of, merit in appellant's argument that the statement of the board, in denying appellee's motion to dismiss, that appellant's mark "consists of a replica of a head of a tiger" was a conclusive determination of the issue preclusive of the board's right to conclude otherwise when the opposition was finally decided on its merits. The motion to dismiss was in the nature of a motion for summary judgment or in the nature of a demurrer. The board's decision thereon was on its face purely interlocutory and in nowise determinative of the issue of likelihood of confusion. The merits of the issue were not reached but expressly reserved for consideration pursuant to final hearing. The appeal here lies, as it must, from the board's final determination dismissing the opposition on the basis of its finding that there is not a likelihood of confusion between the competing marks.

In passing, however, we think it pertinent to observe that the language employed by the board in reserving its...