*1 48 CCPA COMPANY, BRISTOL-MYERS Appellant, Dieserud, Helge Fish, Richardson C. Appellee. INC., PHARMACO, appellant. City, Neave, New York for 6696. Patent McKee, T. Hervey, Morrison Barber & of Customs Court States

United York Hankins, Campaign, New H. John Appeals. and Patent City, appellee. for 1961. RICH, WORLEY, Judge, Before Chief Judges,

MARTIN, SMITH, Judge H. KIRKPATRICK WILLIAM WORLEY, Judge. Chief registration Appellee seeks “Chewing a trademark Containing Analgesics Antac- Gum February 26, alleging ids” first use on appel- Registration by opposed 1957. regis- prior lant on the basis of As-

tration “Bufferin’’ “Antacid pirin.” prior

Opposer concededly user. As described in the registration, the same analgesic antacid and characteristics to be sold to same class purchasers purposes. therapeutic course, are, primarily concerned coverage competing appli registration cation and rather than with might might labels which vary. subsequently Shoe General Mfg. Co., Inc., Bros. Lerner 872. issue sole is whether current use confusion, result mistake, mean within the 2(d) Act.2 the Lanham of Section 1. United States Judge the Eastern from visions States designated principal Sec. “No Code. trade-mark O’CONNELL, applicant may register Trademarks District Senior participate 294(d) others District registrable pursuant Title 28 United Pennsylvania, distinguished shall be re- Judge place on the pro- the Patent fused ister on 15 U.S.C.A. States mistake “(d) v registration so resembles previously Consists by applicant, account of its nature likely, another ^[*] § Office deceive used on the ^[*] a mark and not purchasers: cause confusion or comprises a mark principal <-(cid:127) registered the United unless abandoned, a mark trade reg- it— ” *2 Although “gum” opposition the to has both In marks. “Bufferin,” similarity anything Appeal stat- board Trademark Trial and with goods wholly descriptive still it is of the ed that: “ to applied, no trade- it is thus ‘Buffer’ is word use significance. descrip- pharmaceutical trade and reasoning appreciate While tive of we the antacid characteristics appli- board, agree products opposer that and we are to unable exist concurrent of “Bufferin” and cant. The similarities which fagum” parties are between the marks likely within to result in confusion due to the inclusion opposer’s that meaning sub- mark and the use of We opposition stantially phonetic equivalent should have sustained thereof, appealed viz., must ‘Buffa’ in reverse decision from. mark. The differ marks otherwise

substantially. Reversed.

“Considering the nature of the term ‘Buffer’as to SMITH, Judge, dissenting, whom parties differences KIRKPATRICK, Judge, joins. tween the concluded This my opinion dissent based on there is no reasonable likelihood of not such deception confusion or mistake or “Buffagum” the marks “Bufferin” and purchasers.” to cause confusion or mis- without the board’s purchasers. take or Simi- statement ‘Buffer’ is in use a word found in initial identical pharmaceutical trade and is de- agree of the marks. with the scriptive of the antacid characteristics Trademark Trial and Board that products appli- such taining does not warrant sus- “pharma- cant.” Doubtless those in the opposition where the marks ceutical trade” would attach technical are otherwise so different. grave “Buffer,” to but have we In addition to the differences in the average purchaser doubts that names, presumably what is market would mass ent. “Bufferin” is a medicinal tablet be aware of the technical “Buffagum” chewing is a medicinal interpretation, term. Absent such an gum. Opposer’s registration asserts use we think more than not that the of its name “Bufferin” for “antacid as- average purchaser would attach more prin stipulation [sic].” of fact significance herein further describes the “Buffa” than the board seems “preparation” which is “in the form contemplated. containing aspirin of tablets and certain It seems us that ingredients.” substantially more, marks have rather less, in Applicant than common. As the board asserts use of its mark “Buf- out, points products both for “a containing have the same analgesics addition, antacid characteristics. speci- antacids.”1 The inexpensive, non-prescription applicant men label which filed “Buffagum” items sold over the same counters mass describes as be- purchasers. upset stomach, The marks “for gas, contain the .same heartburn— indigestion.” number letters as well as is, according due to remedy “Buff” identical this label “A stomach in mint- label 1. The does list plication ingredients commonly recognized “analgesics.” lists were in “Aristocrat” and “Aristosheen” form, increased gum, chewing flavored taking.” issue. The court said: ease effectiveness therefore, dealing not are,We sylla- that the final evident *3 but also names entirely with different bles ‘crat’ and ‘sheen’ are ent employed each sound, distinct in user by the pearance, and that aspirin The use purpose. medicinal under tween the marks consideration known pain is well so the relief ‘Aristo’ confined to the therefore pur- or a user cannot conceive portion. portion com- That is the mistaken being so confused chaser bining word form Greek antacid an he deceived that chewing ‘aristos,’ meaning best,’ and ‘the gas stomach, upset gum “for there- its in a mark is inclusion desired instead of and heartburn” high suggestive generally fore applicant’s aspirin tablet because quality. medicinal its on of its mark chewing can that marks well settled gum. Neither do I purposes of com not be dissected syllable “Buff” in presence of the common parison, cause the two would be names Montgomery Ward their entireties. purchaser associate user such Inc., Co., Spiegel, F.2d & Inc. v. 132 origin source opposer. 721; 144, C.C.P.A., Patents, [56 30 USPQ Laboratories, Inc. Miles 185] Libbey-Owens-Ford Co. v. Glass 888, Foley Co., 144 32 C.C. v. & F.2d Co., Inc., 275 General Aluminum Window USPQ P.A., 714; 64] [63 agreed 947, 833. I 47 F.2d CCPA Schering Sharpe & & Glatz v. finding majority con- likelihood Dohme, 1019, 32 C.C. F.2d 146 “Therm-O- the marks fusion between USPQ P.A., Patents, 827, 394]. [64 pointed “Thermopane.” As Lite” Nevertheless, to note proper it opinion majority out frequently held been “lite,” corrupted is a form whose initial light dictionary which has the or regarded the same will Thus, “pane.” names taken as if similar meaning, conveyed the same wholes convey names wholes here the while suggestive descriptive meanings. different remaining portions notation and the applied medicinal clearly of the marks are distinct. descriptive Op- preparations term.2 Examples cases, such suggests aspirin poser’s involved, “buffered" are as follows: Applicant’s “buffered” “Bufferin.” Corp. Vita-Var “Alumatone v., suggests likewise Corp., F.2d 183 612 3 “Buffagum.” its name USPQ (Al Patents, 1151, [86 359] think, therefore, on facts that these Alumikote); umatone and Kraft expressed court rationale this the May Department Co., Kingsland, Cheese v. Walker Kenya Stores Co. D.C., USPQ F.Supp. 105, [75 940, Corp., CCPA (Vegemite Vegex); Miles 318] applicable here. the names There Laboratories, Foley Co., Inc. v. Dictionary, Edi- 3rd 2. Hackh’s Chemical party registrations from the third “any ed.) as, (1944 defines “buffer” tion preparations which have which, when added to solu- majority opinion. substance considered change hydrogen tion, ion resists “Bufflac”; such include names as These addition of acid or alka- “Bonobuff”; “Bufosal”; “Buffate”; concentration “Buffecillin”; “Buff-caps”; “BufOpto”; li.” and “Bufos.” given should little trade- That significance also seems clear to me tories, Pepsodent Co., 144 F.2d Inc. v. F. (Vitamiles USPQ 2d 64] [63 Vitabuild); [41 Chemical Solventol Franco-Italian Packing Cir., Products, Langfield, Corp. Camp Inc. v. v. Van Sea (Sol Co., Inc., Food 31 C.C. 210] Solvite); P.A. ventol Steem-Electric 369].” Herzfeld-Phillipson Since “Bufferin’’ and Cir., taken wholes are distinct (Steam-O-Matic and Steem-Elec sound, meaning appearance, tric); Vick Chemical Co. v. Kerfoot since to which *4 Co., Ltd., 23 C.C.P.A. are different, I do not think (Va 752, [27 predicated pex Vaporub); Ker Thomas syllable on the common use of the “Buff” Lig Ltd., foot & v. Louis K. upon sufficient basis which to sustain gett Co., Cir., (Vapure F.2d 214 opposition. Vapex).” only Where between there, The court think it should syllable marks resides in the initial here, found involved distin- marks “Buff,” my position find stated well guishable as entireties. following: in the persuasive I think there is simi- also recognize that larity between marks and the here presence of a some situations the “Duro-Style marks Fabrics” “Duro- syllable marks common two May sheen” which involved in De- were may sufficient render partment Stores Co. v. Bros. & Schloss whole, confusingly as a sim- 879, 881, Co. stated, ilar. theAs Examiner has There, the court said: frequently happens this more syllable begin- the common at the simi- is obvious “It ning However, each mark. there marks resides general certainly rule that all sug- That word ‘Duro’. begin with the same durability, gests are of there syllable similar. registrations copies over record thirty trademarks fabrics present submit “We wearing apparel which consist either case common “Buff” has ‘duro,’ solely or con- suggestive significance in relation part as a mark. tain it implies in that that combinations settled well has been buffered descriptive of letters against either an alkaline properties thereof will syl- condition. Because of this the great weight in con- accorded as appears in a number of lable sidering whether marks are confus- registered in Class 6. ingly similar, as words or combina- registrations addition to the two purely of letters which ar- tions cited, present Reg. 418,- No. Manufacturing bitrary. North Star “Buff-caps”, Reg. 364,337 No. Corporation, Wells Lamont Co. Reg. 351,083 “Bufosal” No. “Bufox”. West Disin- fecting Company presence Lan-O-Sheen “Because of “Buff” Company, 163 F.2d or “Buf” in a number of trademarks 77]; particularly sug Rite- because Mfg. gestive significance Company, Rite Co. v. Rite-Craft recognizes public it must ; look Labora- 268] Miles to more than this first registrant’s two-syllabled: identify source. trademarks ‘Bufflac’ and ‘Buffate’.4 whole as a done, is no foregoing reasons, when this For I would af- Appeal: firm the Trial and similarity between Trademark real three-syllabled opposition. Board in ‘Bufferin’ Reg- page 2 of vember 1947 which resulted the October Quoted from 566,190 response istration 4, office No. issued November rejecting opposer’s 1952 for the mark “Bufferin.” action of 542,436 No- Serial