Price-Pfister Brass Mfg. Co. v. Milwaukee Faucets, Inc., Patent Appeal No. 6886.

• Decision Date: 16 January 1963
• Docket Number: Patent Appeal No. 6886.
• Citation: 311 F.2d 817,50 CCPA 898
• Parties: PRICE-PFISTER BRASS MFG. CO., Appellant, v. MILWAUKEE FAUCETS, INC., Appellee.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

50 CCPA 898, 311 F.2d 817 (1963)

PRICE-PFISTER BRASS MFG. CO., Appellant, v. MILWAUKEE FAUCETS, INC., Appellee.

Patent Appeal No. 6886.

United States Court of Customs and Patent Appeals.

January 16, 1963.

Boris Haskell, Washington, D. C., for appellant.

William A. Lieber, Lieber, Lieber & Nilles, Milwaukee, Wis., for appellee.

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

SMITH, Judge.

This is an appeal from the decision of the Trademark Trial and Appeal Board, 131 U.S.P.Q. 492, sustaining appellee's opposition instituted under Section 13 of the Trademark Act of 1946 (15 U.S.C. § 1063), to appellant's application¹ for registration of the trademark "ADJUSTA-FIT" for manually operated valves for tubs and showers. Appellee is the owner of the registered trademark² "ADJUSTO" for shower fixtures, control valves and spray heads. Appellee, relying solely on its registration to support its opposition, took no testimony.

Appellant's right to the registration sought is contested under Section 2(d) of the Trademark Act of 1946, (15 U.S.C. § 1052), which provides that a trademark shall not be registered if it "consists of or comprises a mark which so resembles a mark registered in the Patent Office * * * by another and not abandoned, as to be likely, when applied to the goods of the applicant, to cause confusion or mistake or to deceive purchasers * * *." Appellee's ownership of the registered mark, its past and continuing use by appellee and its predecessors in the United States have not been challenged. The single issue therefore is whether the mark which appellant seeks to register so resembles appellee's registered mark as to be barred by the provisions of Section 2(d) of the Trademark Act of 1946.

The record establishes that both parties are manufacturers and sellers of plumbing supplies and equipment and that the goods of the respective parties are sold and distributed through the same sources and trade channels and to the same classes of purchasers. Appellee's trademark "ADJUSTO" is used in connection with "shower fixtures, control valves, and spray heads" as set forth in its registration. Appellant's trademark "ADJUSTA-FIT" which it seeks to register is used in connection with "manually operated valves for tubs and showers" as set forth in its application. In addition, the testimony of appellant's witnesses establishes the fact that the goods of both the appellant and appellee as sold under their respective marks are used in conjunction with tub fillers such as showers and faucets installed in bathrooms both in new homes and in homes which are being remodeled.

With respect to appearance, meaning, and sound, the dominant portions of the trademarks differ from each other by the substitution in the suffix portions of an "A" in appellant's mark for the "O" in appellee's mark and the addition of the descriptive term "FIT" to appellant's mark. We think these differences do not obviate the likelihood of confusion, mistake or deception of purchasers arising from appellant's use of its mark on its goods. The addition of the term "FIT" to appellant's mark creates an impression that it might well be related to appellee's "ADJUSTO" family of goods.

Appellant has introduced into the record six third-party registrations in an effort to substantiate the position that appellee is not entitled to such rights in the word "ADJUSTO" as to justify...