SYNCROMATIC AIR C. CORP. v. WILLIAMS OIL-O-MATIC H. CORP.

• Decision Date: 04 March 1940
• Docket Number: Patent Appeal No. 4206.
• Citation: 109 F.2d 784
• Parties: SYNCROMATIC AIR CONDITIONING CORPORATION v. WILLIAMS OIL-O-MATIC HEATING CORPORATION.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

109 F.2d 784 (1940)

SYNCROMATIC AIR CONDITIONING CORPORATION v. WILLIAMS OIL-O-MATIC HEATING CORPORATION.

Patent Appeal No. 4206.

Court of Customs and Patent Appeals.

March 4, 1940.

Ira Milton Jones, of Milwaukee, Wis., for appellant.

Langdon Moore, of Washington, D. C. (James Atkins, of Washington, D. C., of counsel), for appellee.

Before GARRETT, Presiding Judge, and BLAND, HATFIELD, LENROOT, and JACKSON, Associate Judges.

JACKSON, Associate Judge.

This is an appeal from a decision of the Commissioner of Patents, affirming that of the Examiner of Interferences, sustaining the opposition filed by appellee to the registration by appellant of the mark "Syncromatic."

On November 6, 1935 appellant filed an application for registration of its trade-mark "Syncromatic" for use on air conditioning systems. On January 22, 1936 appellee filed notice of opposition to the registration of "Syncromatic," alleging that it is confusingly similar to appellee's registered marks "Air-O-Matic" (for air conditioning systems), "Dist-O-Matic," "Gas-O-Matic," "Ice-O-Matic," "Wash-O-Matic," and "Oil-O-Matic," and that therefore registration should be denied under the following provision in section 5 of the Trade-Mark Act of February 20, 1905, as amended, 15 U.S.C.A. § 85: "* * * Provided, That trade-marks which are identical with a registered or known trademark owned and in use by another and appropriated to merchandise of the same descriptive properties, or which so nearly resemble a registered or known trade-mark owned and in use by another and appropriated to merchandise of the same descriptive properties as to be likely to cause confusion or mistake in the mind of the public or to deceive purchasers shall not be registered: * * *." Last italics ours.

No testimony was taken, and the opposition was heard on notice of opposition and answer.

The Examiner of Interferences sustained the opposition, holding that "Syncromatic" was confusingly similar to "Air-O-Matic" when applied to identical merchandise (air conditioning systems). In addition to sustaining the opposition, the examiner also refused registration on the ground that the word "system" occurring in the particular description of the goods contained in the application was inapt, citing Lever Bros. Co. v. Butler Mfg. Co., 88 F.2d 842, 24 C.C.P.A., Patents, 1000. The Commissioner of Patents in his decision held this ruling to be correct, but stated that it "* * * may be overcome by appropriate amendment to the application after the termination of this proceeding in the event applicant should finally prevail." The commissioner affirmed the holding of the examiner that the mark of appellant is confusingly similar to appellee's mark "Air-O-Matic" previously registered for the same goods, and on this phase of the proceeding stated in his decision as follows: "I think the examiner of interferences was right. Applicant's argument to the contrary is based largely upon the case of Williams Oil-O-Matic Heating Corporation v. Bliss, 54 F.2d 430, 19 C.C.P.A. Patents, 821, where registration was permitted of the word `Thermatic' over opposer's mark `Oil-O-Matic.' Obviously those marks are less nearly similar than the ones here involved; and the goods to which the marks were applied, while of the same descriptive properties, were not identical. It is true that air conditioning installations are relatively expensive, and that there is less likelihood of confusion than if the marks were applied to goods `of a character involving less discrimination and care in their purchase.' Nevertheless I do not think it can be said beyond doubt that no confusion is likely, and where doubt exists it must be resolved in favor...