Magnaflux Corporation v. Sonoflux Corporation, Patent Appeal No. 6193.

• Decision Date: 03 April 1956
• Docket Number: Patent Appeal No. 6193.
• Citation: 231 F.2d 669
• Parties: MAGNAFLUX CORPORATION, Appellant, v. SONOFLUX CORPORATION, Appellee.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

231 F.2d 669 (1956)

MAGNAFLUX CORPORATION, Appellant, v. SONOFLUX CORPORATION, Appellee.

Patent Appeal No. 6193.

United States Court of Customs and Patent Appeals.

April 3, 1956.

Hill, Sherman, Meroni, Gross & Simpson, Chicago, Ill. (Carlton Hill, Chicago, Ill., and Wm. T. Estabrook, Washington, D. C., of counsel), for appellant.

Thomas O. Arnold, Houston, Tex. (Hutcheson, Taliaferro & Hutcheson, Houston, Tex., of counsel), for appellee.

Before JOHNSON, Acting Chief Judge, and WORLEY and JACKSON, retired, Judges.

WORLEY, Judge.

This is an appeal from the decision of the Assistant Commissioner of Patents affirming the decision of the Examiner of Interferences, dismissing a petition by appellant, Magnaflux Corporation, for cancellation of Registration No. 558,222, granted to appellee, Sonoflux Corporation on April 29, 1952, for the trade-mark "Sonoflux," for "Vibromagnetic inspection instrument to detect flaws in Ferromagnetic materials."

The petition for cancellation was predicated on prior use and registration by petitioner of the trade-mark "Magnaflux" applied to "Electrical Apparatus for Magnetic Testing of Metal Articles" and "Metallic Comminuted Paramagnetic Material for Use in Locating Defects in Magnetic Bodies," as well as prior use of the trade-mark "Sonizon" for "Apparatus for Measuring Wall Thickness From One Side only by Means of Ultrasonics."

As stated by the Examiner of Interferences, there is no question of priority, petitioner having proved ownership of the registrations and prior use of the marks relied upon. That proof was not questioned by the respondent. The sole issue, therefore, is whether the respective marks, as applied to the goods of the parties, are confusingly similar.

The record contains evidence of use by appellant of "Magnaflux Sonizon" in combination. The Examiner of Interferences pointed out that such use had not been pleaded in the petition for cancellation, and held that the evidence did not unequivocally establish such a use in combination prior to appellee's use of "Sonoflux."

The decision of the Assistant Commissioner does not refer to the use of the combination of marks and, while appellant's reasons of appeal to this court allege error in the failure to sustain the petition for cancellation on the basis of such use, the matter is not discussed in appellant's brief here and may, therefore, properly be assumed to have been abandoned. Paulson v. Hyland, 136 F.2d 695, 30 C.C.P.A., Patents, 1150, but in any event, we think the holding of the Examiner of Interferences is correct. Accordingly, the question as to whether the combination "Magnaflux Sonizon" is confusingly similar to "Sonoflux" will not be considered.

The goods to which appellant's mark "Magnaflux" and appellee's mark "Sonoflux" are applied are substantially identical, being, in each case, a device for detecting flaws in magnetic bodies by magnetizing the bodies and applying to them a finely divided magnetic material which is caused to assume a form corresponding to any defect in the body. Since that result is obtained through the instrumentality of magnetic flux, it would seem the "flux" portion of each of the marks under consideration has a descriptive significance.

It is well settled that, while the question of confusing similarity of marks is to be determined from the marks as a whole, it is also proper to note that if a part of the mark is descriptive in nature, and has little or no trade-mark significance, it cannot be regarded as dominant and will generally be given less weight than more arbitrary portions of the marks. Miles Laboratories, Inc., v. United Drug Co., 112 F.2d 814, 27 C.C.P.A., Patents, 1273; West Disinfecting Co. v. Lan-O-Sheen Co., 163 F.2d 566, 35 C.C.P.A., Patents, 706; Nestle's Milk Products, Inc. v. Baker Importing Co., Inc., 182 F.2d 193, 37 C.C.P.A., Patents, 1066; and Kensington Steel Company v. Nichols Engineering & Research Corp., 188 F.2d 397, 38 C.C.P.A., Patents, 979.

Clearly appellant's registration and use of a trade-mark including the syllable "flux," for an apparatus whose operation depends upon magnetic flux, should not preclude others who market the same type of device from employing that syllable as a portion of their marks.

The Assistant Commissioner held that since the goods here involved are relatively expensive and are sold to discriminating purchasers, those factors were to be considered in determining likelihood of confusion. Appellant ably argues that the type of purchasers should not be controlling here, and cites cases in which marks have been held...