Kramer Trenton Co. v. Walcutt

• Citation: 161 USPQ 228,408 F.2d 479
• Decision Date: 03 April 1969
• Docket Number: Patent Appeal No. 8136.
• Parties: KRAMER TRENTON CO., Appellant, v. Carl O. WALCUTT, dba the Winterizer Company, Appellee.
• Court: United States Court of Customs and Patent Appeals

161 USPQ 228, 408 F.2d 479 (1969)

KRAMER TRENTON CO., Appellant, v. Carl O. WALCUTT, dba the Winterizer Company, Appellee.

Patent Appeal No. 8136.

United States Court of Customs and Patent Appeals.

April 3, 1969.

W. Saxton Seward, New York City (Robert I. Dennison, Donald L. Dennison, Washington, D. C., of counsel), for appellant.

Mahoney, Miller & Rambo, Eugene J. Mahoney, Columbus, Ohio, for appellee.

Before WORLEY, Chief Judge, and RICH, ALMOND, BALDWIN and McGUIRE^*, Judges.

BALDWIN, Judge.

This appeal is from the decision¹ of the Trademark Trial and Appeal Board dismissing an opposition by Kramer Trenton Company to the application² of Carl O. Walcutt, dba The Winterizer Company, to register the trademark WINTERIZER for goods described as "refrigerator system" asserting use since December 31, 1963. Appellant, Kramer Trenton Company, opposed on the ground of likelihood of confusion, based upon its registered trademark WINTERSTAT³ for "evaporative refrigeration system designed automatically to maintain constant head pressure," asserting use since February 3, 1954.

In its opinion the board noted certain testimony of appellant-opposer's witness that the marks were used on competitive goods. The board then stated:

Since applicant does not dispute that opposer is here the prior user, or that the goods of the parties are competitive, the sole issue to be determined in this proceeding is whether or not the resemblances between applicant\'s mark and that of opposer are such as to be likely to cause confusion or mistake or deceive.

In this regard, the resemblances between "WINTERIZER" and "WINTERSTAT" reside solely in the fact that each thereof includes the word "WINTER" which, in our opinion, would be likely to suggest to purchasers the fact that the goods of both parties will perform efficiently under all winter conditions when the condensing systems thereof are placed outdoors. Considering the suggestiveness of these marks, and the differences between them, when considered in their entireties, it is concluded that there is no reasonable likelihood of purchasers being confused, mistaken, or deceived as to the origin thereof.

On appeal, appellant appears to be taking a position that the appellee is really seeking to appropriate the goodwill associated with appellant's mark.⁴ In this connection, appellant points to his prior entry into the field by some ten years accompanied by a considerable advertising expenditure in that period devoted to promoting the mark WINTERSTAT, and to appellee's admitted knowledge of appellant's mark prior to filing the application now before us. Further pursuing this approach, appellant draws particular attention to appellee's refusal to accept a registered letter (of record) mailed by appellant attempting to place appellee on notice of trademark infringement. These matters, even if arguendo given the construction appellant asserts, would bear only...