530 F.2d 1400 | C.C.P.A. | 1976
This is an appeal from the decision of the Patent and Trademark Office Trademark Trial and Appeal Board (board), 185 USPQ 824 (1975), dismissing appellant's (Faultless’) opposition No. 54,094, filed March 21, 1973, against application serial No. 401,883, filed September 2, 1971, for registration of the mark “FAULTLESS” for canned foods such as vegetables, potatoes and pickles. Appellee (Sales Producers) alleges use since 1891. Faultless owns a plurality of trademarks and trademark registrations
The sole issue is whether Sales Producers’ mark so resembles that of Faultless as to be likely when applied to Sales Producers’ goods, to cause confusion or mistake, or to deceive within the meaning of 15 U.S.C. § 1052(d).
The prior continuous user,
We reiterate that the ultimate conclusion regarding likelihood of confusion is necessarily drawn from all probative facts in evidence in each individual case. That conclusion, as distinguished from general rules of law or interpretation, cannot be controlled by earlier conclusions such as that reached in Hunt
Considering the wide variety of different goods currently sold in supermarkets and the absence of survey or other evidence tending to establish a likelihood of confusion, we agree with the board’s statement that “considering the nature of the word ‘FAULTLESS’ and the differences between the goods here involved, it our opinion that applicant’s use thereof is not at all likely to cause confusion, mistake or deception or to falsely suggest a connection with op-poser,” which is but another way of say
AFFIRMED.
. Reg. Nos. 51,025; 746,087; 743,621; 813,633; 917,384; 942,103; 942,208 and 950,029 issued on April 3, 1906; March 5, 1963; January 15, 1963; August 23, 1966; July 27, 1971; August 29, 1972; September 5, 1972 and January 2, 1973 respectively.
. Sales Producers submitted numerous state registrations as evidence of early use. State registrations alone do not establish use. 2 J. McCarthy, Trademarks and Unfair Competition § 22:2 (1973). We note the absence from the record of proof of any specific date of first use inuring to the benefit of Sales Producers.
. Hunt was not argued herein before the board. See Curtice-Burns, Inc. v. Northwest Sanitation Products, Inc., 530 F.2d 1396, 189 USPQ 138 (CCPA 1976).