Proctor & Gamble Co. v. Eney Shortening Co., 1319.
| Decision Date | 02 June 1920 |
| Docket Number | 1319. |
| Parties | PROCTOR & GAMBLE CO. v. ENEY SHORTENING CO. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Submitted May 14, 1920.
E. T Fenwick and Chas. R. Allen, both of Washington, D.C., for appellee.
From a decison of the Patent Office, overruling the opposition of the Proctor & Gamble Company to the application of Eney Shortening Company for the registration of the sign 'Esco' as a trade-mark for a lard substitute, the former appeals.
The opposer shows that it is the owner of the sign 'Crisco' as a trade-mark for a lard substitute, and alleges that, as its goods are of the same descriptive qualities as the goods of the applicant, the marks being similar, confusion would be likely to result in the minds of the public with respect to the origin of the goods upon which the marks appeared, and that, in consequence, the opposer would be damaged thereby. 33 Stat. 725, c. 592, Secs. 5 and 6 (Comp. St. Secs. 9490, 9491). The Examiner of Interferences sustained the opposer, but he was reversed by the First Assistant Commissioner, who held that no likelihood of confusion had been shown.
It is conceded that the goods are substantially identical. The only question, then, is as to whether or not the two marks are so similar as to be likely to produce confusion in the minds of purchasers with respect to the origin of the goods upon which they are used. As no testimony was taken, we must determine it by an inspection of the marks themselves. What constitutes objectionable similarity in marks has been so often considered by this court (Wayne County Preserving Co. v. Burt Olney Canning Co., 32 App.D.C. 279; Phoenix Paint & Varnish Co. v. John T. Lewis & Bros. Co., 32 App.D.C. 285; Kaut-Reith Shoe Co. v. International Shoe Co., 45 App.D.C. 545; Thomas Manufacturing Co. v Aeolian Co., 47 App.D.C. 376; William Waltke & Co v. George H. Schafer & Co. (D.C.) 263 F. 650) that we do not deem it necessary to enter upon a discussion of it here. For the reasons given in those decisions we hold that the use of the marks before us upon the goods to which they are applied in this case would be likely to produce confusion. Even if we doubted it, we would still rule in favor of the opposition on the authority of William Waltke & Co. v. George H. Schafer & Co., supra, and Lambert Pharmacal Co. v. Mentho-Listine Chem. Co., 47 App.D.C. 197.
The applicant says that its mark...
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