Younghusband v. Kurlash Co.

• Decision Date: 07 February 1938
• Docket Number: Patent Appeal No. 3915.
• Citation: 94 F.2d 230
• Parties: YOUNGHUSBAND v. KURLASH CO., Inc.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

94 F.2d 230 (1938)

YOUNGHUSBAND v. KURLASH CO., Inc.

Patent Appeal No. 3915.

Court of Customs and Patent Appeals.

February 7, 1938.

James R. McKnight, of Chicago, Ill., and Paul Finckel, of Washington, D. C., for appellant.

Joseph J. Juhass, of New York City, for appellee.

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

LENROOT, Associate Judge.

This is an appeal from a decision of the Commissioner of Patents sustaining an opposition filed by appellee to prevent the registration, under the Trade-mark Act of February 20, 1905, of appellant's mark "Starlash," applied to eyelash and eyebrow mascara, for which registration he filed application on January 28, 1935.

Appellee on May 1, 1935, filed notice of opposition to the registration of appellant's mark, and alleged therein: Prior use, ownership, and registration of the trademark "Kurlash," applied to "eyelash curlers," and the trade-mark "Kurlash Tweezette," for tweezers for removing hair; that the goods to which the respective marks are applied possess the same descriptive properties; that the marks of the respective parties are confusingly similar; and that opposer believed it would be damaged by the registration of appellant's mark.

Appellant answered said notice of opposition and, inter alia, denied that the goods of the parties possess the same descriptive properties, that the marks "Starlash" and "Kurlash" were confusingly similar, and that appellee would be damaged by the registration of appellant's mark.

Both parties took testimony. It appears therefrom that appellee's mark "Kurlash" is applied to an instrument for curling eyelashes, while appellant's mark is applied to mascara, a cosmetic used on eyelashes; it further appears that mascara and eyelash curlers are sold in the same stores and to the same class of people.

The Examiner dismissed the notice of opposition and adjudged that appellant was entitled to the registration of the mark applied for, holding that the marks may be concurrently used upon the goods of the respective parties without reasonable likelihood of confusion.

Upon appeal by the opposer, the Commissioner reversed the decision of the Examiner of Interferences and sustained the opposition of appellee, holding that the marks involved are used upon goods possessing the same descriptive properties and are confusingly similar. From this decision appellant has taken this appeal.

Both parties cite many cases in support of their respective contentions.

The Commissioner held that the marks here involved are not more dissimilar than the marks "Rotex" and "Kotex," which, in the case of Kotex Co. v. McArthur, 45 F. 2d 256, 18 C.C.P.A., Patents, 787, we held to be confusingly similar, applied to goods possessing the same descriptive properties.

Obviously, in cases of the character before us, only general principles of law are applicable, and, after being applied, it is very largely a matter of opinion whether two marks used upon goods of the same descriptive properties are confusingly similar. The Proctor & Gamble Co. v. J. L. Prescott Co., 49 F.2d 959, 18 C.C.P.A., Patents, 1433.

We have no hesitation in holding that the goods to which the respective marks are applied possess the same descriptive properties, and we do not deem it necessary to cite authorities in support of this holding. At the same time it is proper, in considering the question of...