MARION LAMBERT, INC., v. O'CONNOR
| Citation | 86 F.2d 980 |
| Decision Date | 21 December 1936 |
| Docket Number | Patent Appeal No. 3676. |
| Parties | MARION LAMBERT, Inc., v. O'CONNOR. |
| Court | United States Court of Customs and Patent Appeals |
John D. Rippey and John H. Cassidy, both of St. Louis, Mo., for appellant.
Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges.
The appellee, hereinafter referred to as applicant, filed his application in the United States Patent Office for the registration, under the act of February 20, 1905, as amended, 15 U.S.C.A. § 81 et seq., of the mark "VOO" for depilatories, and alleged use of said mark thereon since April 19, 1933.
The appellant, hereinafter referred to as opposer, filed opposition to the registration of said mark on the ground that it was the prior owner and user of the trade-mark "DEW," which it had used in connection with its business in selling "deodorants and nonperspirants," and that by reason of the similarity of the marks and the character of the goods of the respective parties, damage would result to opposer if the mark of applicant was registered.
The Examiner of Interferences found that opposer's prior use of the mark had been admitted and that there was some degree of similarity in sound between the marks, but concluded that by reason of the fact that not one of the letters found in opposer's mark was present in the applicant's mark, and since the marks were used on goods not identical, there was no likelihood of confusion, and held that the applicant was entitled to the registration.
Upon appeal to the Commissioner of Patents, the decision of the Examiner of Interferences was affirmed for substantially the same reasons as those assigned by the Examiner of Interferences. The Commissioner held that the goods were of the same descriptive properties, but that since the marks were different, and there was a difference between the goods, there would be no likelihood of confusion. He found, however, that there were certain points of similarity in the sound of the marks. He pointed out that there was some difference in the pronunciation and no similarity in the meaning.
Depilatories unquestionably are of the same descriptive properties as deodorants — one removes hair, the other removes odors. Both are for personal application, and are sold in the same places and to the same class of casual purchasers.
It seems there could be no question that confusion would likely result if the marks were identical. The marks are very similar in sound. "DEW" is pronounced "D&Umacr" which is practically the equivalent of "D&Omacr&Omacr." The parts of the words which are given greatest stress in pronunciation are almost identical in sound. The initial letter of each word is a consonant and has a similar sound. Both words contain three letters.
Obviously, sound may be of controlling importance where there are other similarities in the marks which are contributive to the likelihood of confusion. Cluett, Peabody & Co., Inc., v. Denver M. Wright, 46 F.(2d) 711, 18 C.C....
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