Stanadyne, Inc. v. Lins
| Citation | 180 USPQ 649,490 F.2d 1396 |
| Decision Date | 14 February 1974 |
| Docket Number | Patent Appeal No. 9145. |
| Parties | STANADYNE, INC., Appellant, v. Albert LINS, Appellee. |
| Court | U.S. Court of Customs and Patent Appeals (CCPA) |
Daniel C. McEachran, Parker, Plyer & McEachran, Chicago, Ill., attorneys of record, for appellant.
Walter C. Farley, Roylance, Abrams, Kruger, Berdo & Kaul, Washington, D.C., attorneys of record, for appellee.
Before RICH, Presiding Judge, BALDWIN, LANE and MILLER, Judges, and KASHIWA, Judge, United States Court of Claims, sitting by designation.
This appeal is from the decision of the Patent Office Trademark Trial and Appeal Board dismissing four consolidated oppositions, opinion published in full at 175 U.S.P.Q. 365 (1972). Familiarity with the opinion below will be assumed. We reverse.
As the board's opinion shows, appellant-opposer, while it sells its plumbing products to plumbing, heating, and cooling wholesalers, also advertises its products, under its double water-drop mark, in consumer magazines of national circulation. Appellant's priority is not contested. Although third-party registrations introduced by appellee show that several others have registered trademarks including as a feature a single conventionalized "water drop," none of them shows two overlapping "waterdrops," which is one of the features common to the marks of the parties here. Each of appellee's marks features the color red for the left drop and blue for the right drop, which are partially overlapped, thus producing the color purple in the area of overlap. Appellant has made extensive use of the red and blue color scheme, though also using other color schemes. As the board found, the goods of the parties would move through the same trade channels to the same class of purchasers. These are the salient facts as fairly set forth in the opinion of the board before it reaches the question whether there would be a likelihood of confusion from assumed concurrent use of the marks of the parties on their respective goods. The board observed that the resolution of that question is "purely a subjective one."
On the subjective resolution, we disagree with the board. Because it was a subjective determination by the board, we cannot with certainty point out wherein or why the board erred, other than in its ultimate conclusion. The following points seem to us to be reasonable possibilities on the basis of what the board said in its opinion.
While we do not know how much weight the board gave to the third-party registrations, it is...
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...the mind of the purchasing public in the matter sought to be established by the applicant in Helene Curtis.4 More recently, in Stanadyne, Inc. v. Lins, supra note 3 involving an opposition proceeding, this court In the absence of evidence of the extent of actual continuing use of registered......
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