er’s there doubt is not probability of on the entitled to *1 confusion, or if registration. newcom- FRANKFORT KASKO DISTILLERS (Patents) DISTILLERIES, PRODUCTS CORPORATION. record, appellee has According to the “Charms” continuously used its mark Patent candy appears that further since Appeals. Court of Customs and Patent products sold and advertised May 6, 1940. throughout more United States for 21, 1940. Rehearing Denied June twenty years, reaching one state $20,000 per year, high and that the ad- goods under vertising of said said throughout the United has been extensive States. Appellant contends that a concurrent market for the two marks respective goods eight years on the record, has, shown according volved ownership no confusion as to in deter- into consideration should be taken arising the likelihood of confusion registered. at the time mark was is well in de understood that

termining the confusion aris likelihood of concurrently trade-marks, fact that no actual con proved fusion is not determinative to whether at time registration there was a of such likelihood confusion. The fact that record does affirmatively confusion has show that necessarily past does existed prove now confusion does not that actual pf exist or that reason the variation of practices may trade to exist in the future. between difference lant’s mark and “ant” of mark and the omission “s” mark. The one, word “Charmant” is a French said “lovely.” “charming” mean It is obvious appearance, mark in sound and quite meaning is “Charms.” We think distinguish mark will not Judge, dissenting. petitioner; from those of the if are concurrently used on iden is, statutory sense, tical resulting; of confusion likelihood that the Office tribunals concluded mark should not have been registered, and that it should be cancelled. The decision of the Commissioner of Pat ents, affirming that of In the Examiner of terferences, requiring that the mark be can-

celled, is affirmed.

Affirmed.

482 applicant finally prevails the disclaimer presented of trade- the examiner appropriate for action.” opinion areWe of the commis- R, C., Washington, Mawhinney, of D. J. sioner erred reversing the decision appellant. for upon Examiner of Interferences A, 111., Murray, W. Chicago, merits, and decision should have pellee. been affirmed. GARRETT, Presiding Judge, Before and While it is true that in deter BLAND, HATFIELD, LENROOT, and dif Judges. Associate ferent trade-marks must be considered it is well one established that LENROOT, Judge. word or feature of a mark may be opposi- appeal in a trade-mark This is an portion dominant and wherein Commissioner proceeding tion greater parts force and effect than other Ex- a decision of the reversed Patents Brewing Company, aminer of which sustained Interferences v. Beverage Corporation, Inc. etc., Delatour opposition to the notice 253, Patents, C.C.P.A., 100 F.2d 26 778; Paint Baltimore & Color Works v. whiskey. applied 1009, Co., Bennett Glass Paint 40 17 & F.2d May filed Appellee’s application was C.C.P.A., Patents, 1269; Bon Ami Com 1, 1937, stated is therein Robbins, pany F.2d v. McKesson & 93 continuously applied said mark had 915, Patents, 826; C.C.P.A., Charles 25 1, goods (whiskey) to its Spicer, v. R. etc. W. H. Bull Medicine 1934. Patents, C.C.P.A., 18 ^ opposition alleged appel- notice of upon whiskey of the mark “Four lant’s use rule, accordance this in the case prior October long Roses” Hellman, Inc., of Richard v. & Oakford same, one of registrations of Fahnestock, C.C.P.A., F.2d Pat 19 In said July issued on which was ents, 816, held that marks “Richard we alleged it was also notice Heilman’s Blue Ribbon” and Ribbon” “Blue confusingly parties were respective confusingly were similar when used similar, appellant dam- goods. identical appellee’s mark. aged by Baltimore Paint Color the case of & testimony. parties Both took Co., supra, Glass Paint v. Bennett & Works appellant that the use established “Surface held the mark Insurance we long antedated “Four Roses” mark by Policy Products” appellee of its “Property Life Insurance” to the money in expended large sums of lant has identical every medium practically These cases are cited to illustrate goods marked as aforesaid and has that, although fact one of a every part part, less than another the United States. conspicuous part may less be the testimony in behalf After portion completed, ap- respective parties had been purchaser If the trade-marked application pellee amend its moved to would be more remember disclaiming the of a another This motion was mark shown. from the goods, such of Interferences. the Examiner denied part of the the de- disclaimer, attempted respect to this With cisions above cited. in his the commissioner a disclaimer of the Com “Applicant tendered In the case of American Beverage Corpora pany, ‘Maryland,’ which for Delatour term geographical etc., tion, supra examiner of inter- reasons the [100 sufficient approval 78], His ruling to enter. refused ferences Hatfield concurring regard will not does the disturbed. Company Mc Bon Ami in so case of rights not affect Robbins, Inc., supra, follows: if Kesson proceeding is & far as prohibitive do bining descriptive that newcomer need with a all in the field “If in order charge can be held to created avoid the arbitrary a nonconflicting is to select a word unlikely scriptive, a word confusion. and combine it with to cause *3 reg- is the a which dominant feature of properly so it “We do not think the borrowed trade-mark so that istered word becomes the dominant feature held.” cited cases last above While the three trade-mark, mark, registered the descriptive refer to words ad- and outstanding valuable extensive geo- applicable principle the is to use, of little vertising and soon becomes terms, terms, like de- graphical for such and, value, course, subse- of the each of cannot, scriptive words, they have a unless quent imitating (and there trade-marks secondary meaning, origin indicate the ex- many) only to would be is of value goods- producer in the good the trading its users are tent that us that word “Rose” It is clear to the original will of the owner of the appellee’s the part of the dominant trade-mark.” any way Com- In said case of the of ing the Corpora- pany, tion, etc., supra, Beverage Inc. v. Delatour distiller, in the the State in which quoting the fore- after produced. It is likewise observa- going, we stated: think the “We appellant’s clear that in mark “Four Roses” here, applicable above tions last part is the word “Roses.” similarity between .two appears It record that by the may not avoided trade-marks money expended large sums descriptive merely by adding later user “Four Roses” brand of its disclaimed words to a technical clear- mark sales of this and its brand amount ly similar to the mark of the earlier user. per year. several million dollars It is an otherwise, it desiring Were originating old trade-mark appropri- from another’s trade-mark could predecessor prior to 1923. and, by superimposing ate it a num- it nothing in There indi- record to descriptive words, ber of not in themselves cate the appellee’s amount of sales of registrable, and therefore- disclaimed whiskey, brand of shown, from the mark secure there is no evidence respecting the date same, because the marks would but, adoption mark; as hereinbe- descriptive similar if the application, fore May 1, 1937, which was filed disclaimed words be effect, the same states the mark had been considering whole, the mark as a as if by appellee disclaimed, such words were in themselves registrable as a valid In It will be seen from the foregoing trade-mark. other words, can not be applicant, by part that an as the dominant combining part a technical and de- the dominant trade-mark mark words, scriptive mark, except neither of which alone mark the registrable “Rose,” would be him, part dominant appellant’s produce can a while in composite mark which registrable.” mark is the viz., plural rose, “Roses.” In case of In re Bottling Coca Cola Carmel Company In the case of Wine Angeles, Los Co. of 18 C. Winery, App.D.G. 1, California court question C.P.A.Patents involved * * * goes It say- stated: ing without mark “Lemon Frost” used right no incorporate that one has as a trade-mark on a soft drink was con of another as an essential feature fusingly similar to the mark Frost” “Jack practice of his mark. Such would lead to syrups extracts for mak confusion, deprive no end of the owner non-alcoholic, beverages. maltless just protection a mark which law accords him.” ‘Lemon’ is prohibited “Since and ‘Frost’ testimony on account shows that Frost,’ of ter, the mat- lant’s brand called for ‘Jack case, “Roses,” under facts of this resolves the name and it is clear whether, question itself into a com- to us that is this Norris, Inc., pur- by ordinary Charms us remembered case that would be chasers, “Rose” and that the word C.C.P.A., Patents, -, be re- 27 decided concur pellee’s would rently, applicable instant case. purchasers. therefore membered appellee’s In follows, that case we said: “It in our nearly rule determining re- to trade-marks shall be viewed as sembles principle elementary in mind of whole. This is so mistake cause confusion or require trade-mark law as to citation public. authority. determining thought by some that likelihood of confu Prod- of Kasko case Distillers cision *4 sion, goods upon re where which the Goldsborough, Corp. Records & ucts spective are identical marks * *, *, marks, appearance their -, is incon- meaning sound are all to into taken expressed, but here with views sistent any or all consideration. these If regard the com- it. There we do probability elements of con “Mary- were “Melrose” peting marks fusion, or if there is doubt on the upon identical Rose” used land reg the newcomer’s mark not entitled to in single word and “Melrose” was istration.” ordinary purchaser would not opinion the commissioner, decision, in and remember his dissect the “Melrose” ques- respect being real to the word syllable it. -The “roses” alone only the last calling appellant, in that case used in tion discussed fol- my the entire mark reasoned confusingly similar the mark lows : Rose” was “Melrose,” equal significance each giving “Opposer points out its ‘Four Roses’ and “Rose.” whiskey single referred last the mark “Mel- Whether ‘Roses;’ claim is made that rose” this word alone has ever been used decision, suggested or not discussed opposer or a manner being hyphenated. “Melrose” not the term analagous thereto. Moreover applicant’s mark, not occur in does nor Moreover, assumption, a fair anything record to indicate by appel- view of the extensive ‘Rose,’ applicant’s “Four Roses” brand alone; presumption ever thereof, very large appel- and the will is that be used association knowledge had lee’s officers ‘Mary equally prominent word, with the when it Lelong, Elgin land.’ Lucien expected See must lee Manufacturing of the same to 691, where the court said: For reasons hereinabove presume par- ‘But we cannot the Commissioner of Patents ties will of their reversed. only, they willfully will Reversed. dulge practices which are subversive registrant. The rights of some other (dissenting). marks, so far as this court they registered, must be taken as The decision of the commissioner should presumption will my opinion sustained. .respective ” registered.’ marks should be considered as a whole. I can see no feature in either passing, it is amiss to observe Certainly the marks. they when are consumers who are careful discriminat- aas whole with respect ing enough purchase brand their appearance, sound they exactly meaning they what wish to differ or name know radically. see'no they I occasion buy get and see what take the to it marks apart, and I think the rule as stated ask for.