Planters Nut & Chocolate Company v. Crown Nut Company, Inc.

Appeals objection claims Board of is therefore re- “As to the versed. 10, 19, include the 21 twice 20 and may element, be stated Reversed. supported

this form of claim is parte Duncan, & Ma- Ex Prichard KIRKPATRICK, Judge, sat did but 1207; cauley (123 1906 C.D. participate O.G. in decision. 348), in effect was held in which it performs two that where an element organization general functions ain may properly twice

such be element [Emphasis in the claim.” included

ours.] reasoning in these

We think opinions In the claims sound. three appeal fact do in mechanisms several 49 CCPA result. cooperate produce desired PLANTERS NUT & CHOCOLATE COM- ele PANY, more structural Appellant, The fact that one or func performing than ments more mechanisms to the are common tion COMPANY, Inc., CROWN NUT separately claims are recited Appellee. prevent Appeal claims does not sufficiently supported by Patent No. disclosure. United States Court of Customs Appeals. and Patent this, where as aIn case such Aug. 15, 1962. language ambiguity there is carefully they claims, be should the analyzed reasonably if can be to see supported disclosed found to be emphasize that wish to structure. We support a rule is not intended to this ease separate perform elements number functions recited claims, it intended nor is times in the inconsistent

overrule or be Parker, supra. Each as Kreidel interpreted as must in each case

claim reasonably language

broadly will as interpretation

permit will de and each

pend each upon facts of the individual upon “rule reliance Automatic as inclusion” will lead to double interpretations unreasonable al reliance a “rule

will automatic governing

lowing inclusion”. The double inclusion, not double

consideration what is a reasonable construc

rather language claims. previously stated,

As we think 110, when claim construed as broad

that ly reasonably possible, supported is by appellant’s specification. The decision registrations alia, four Inter it has May 121,818, 28,1918,

the mark. for No. peanut bars,” “salted and peanut a male humanized unshelled hav ing top, stovepipe hat on the face on upper peanut, spindly part legs black and a cane arms and held tip hand with its outstretched rest ground. Depending on the on how figure, shell considers .the Boyn- Lawrence, Mason, Fenwick & long is either man or of the torso Livingston, Washington, P. D. C. ton A torso. mono beard conceals the C., (G. Washington, Busick, D. Cabell dependent worn cle with cord is in one counsel), appellant. for eye figure spats. and wears No. Pa., Youtie, Philadelphia, Robert K. 508,052 29, 1949,1 and No. March appellee. 538,882 6, 1951,:2show of March substan Judge, WORLEY, and Chief Before tially figure having humanized the same Judges, RICH, MARTIN, SMITH, and generally appearance the same Judge KIRKPATR and H. WILLIAM except first the nut ICK* beard, and shell is a torso not a changed slightly posture and re Judge. versed, RICH, the hat is a hat lowered in dress the crown and the words “MR. bears appeal of the is from the decision This 553,895 No. PEANUT” on its band. Ap- Trial Trademark and Patent Office January 22, 1952,3 Spanish shows a ver dismissing USPQ 345) (128 peal Board changed sion Mr. Peanut from the opposition of Planters Nut & Choco- foregoing style by the substitution of Company a de- late Spanish type low-crowned hat and the sign of an form animated striped addition shawl carried on Inc., Company, peanut, Nut Crown figure hanging left arm to its 5,979, application April filed No. Ser. knees. 37,911. Applicant Opposition No. February only 17, 1953, claims since use appellant’s variant forms of These goods application, in the named and Peanut have been used adver- Mr. unshelled, “Nuts, and salted following shelled and para- as set tised forth is a and unsalted.” relative new- graph stipulation: (cid:127) comer. Opposer “10. since when testimony taken. The No MR. PEANUT DESIGN was stipulated facts and in- certain adopted placed in active use has stipulation troduced 36 exhibits three had sales excess of hundred showing ad- extensive fifty ($350,000,- million dollars vertising marks. of its 000.00) products of nuts and nut prior trademark, Appellant-opposer relies on under said use, expended pro- since has moting comprised consisting humanized on the its said trademark goods figure applicant. peanut, named those nuts, Judge District United Senior and salted assorted oil States Pennsylvania, cooking purposes.” District the Eastern place designated participate illustrated mark is hoard’s This O’CONNELL, pursuant Judge provi- goods opinion. named are “salted 294(d), Title sions of Section 28 United chips, potato peanuts, candied States Code. doughnuts.” pop corn and buttered peanuts, “shelled salted “salted named 1. The named are peanut candy, peanuts, peanuts.” covered chocolate ($10,- pencil top Mr. of million dollars Peanut varied. As a ten in excess years.” during past legs. drinking he 000,000.) ten without torso mugs are made from his head and advertising in ex- specimens painting hat. On the cover of a book he Peanut char- that this hibits show Mr. running is between two In children. packages in on and featured both acter is a New Year’s advertisement he has even postures and in different advertisements appeared (Stip. aas naked babe. Ex. ap- engaging in activities. He various 13.) Packaging No. Modern said: pears in billboards and three-dimen- on giant rooftops in size on the sional form Peanut, 34-year-old “Mr. star and factories. of stores (sales salesman for Planters August 1950 of “Modern year), now in excess of million a $35 Packaging” magazine,4 is, en- in an important article per- if not the first Peanuts,” product “Planters “twentieth titled sonification of a in this series,” country, Mr. Peanut shows at least the best known Square spec- on an animated Times been and most trade successful and in than human size has anywhere. tacular more its kind to be found riding parade on floats on amazing been Pushed popularity, he City identity Atlantic boardwalk. The article established the com- pany’s package states: and brand name and produce enabled “Birth a Salesman. maximum results at single important of most “One [Emphasis sale.” ours.] development factors Appellee’s brief thus Company, describes the- pack- Planters aside from register: mark it seeks to aging itself, was the creation of Mr. Peanut “Appellee’s figure peanut is a ****** grotesque king having only comical today appears “Mr. Peanut represented by peanut. head every package every container peanut disproportion- head company. filled He has star ately large size relative to the re- billing in advertisements and dis- body mainder of the short and limbs. plays. him Statutes of will be found Thus, Appellee’s figure, only the- company buildings. He has generic peanut head is of the figuration. brought frequent- been life squatness of the- strolling ly seen the business streets body Appellee’sgrotesque peanut- many cities. He attends king emphasized by being is further public gatherings, likes ride on fully draped clothed and with a salesman’s car and for a time he ground-length cape abundantly frequently seen on the board- characteristically- trimmed with royal, City.” walk at Atlantic Appel- ermine-dotted fur. premiums Under an illustration of figure peanut-king lee’s is substan- caption: tially flowing royal covered “PREMIUM PROMOTIONS open robes. An crown surrounds kept years sending have customers region upper peanut, coupons. key Mr. Peanut is a through head visible the- every figure premium be- —even Appellee’s peanut king crown. car- top sealed fluid at stubby ries a short mace in one- ” * * pencil. mechanical relatively bulky hand wears penny Prominently have printed' been Mr. shoes. Peanut buckle banks, pepper shakers, phrase salt and across the crown is the ‘Fit drinking mugs King.’ too-, Also, For A Ap- in which the form of face in Stipulated Ex. No. 31. gaiety king board found that had pellee’s is one ** become glee, well-known trade general public the origin as an indication of configuration” “generic peanut The appellee’s opposer’s products but never- to is mark above referred concluded “that theless the marks unshelled, common, double-kernel distinctly every different in configuration of peanut. But respect purchasers material and that “generic.” crown sits the head is products would not be to attribute top made into it and it on the single sold thereunder source.” by placing face of a human caricature (Emphasis ours.) areWe unable to centrally bold features agree premise either with the or the con- thereof end shell lower clusion. copied in the board’s mark is chin. opinion, In our formed from observa- appellant’s opinion of published one as is tion, the marks other in resemble each registered marks. many respects. sym- material Each ais at the clear outset be made It should bol the form of a little man based “ge- figure not appellee’s total a is that unshelled, peanut. an two-kernel symbol, use. The all to free to neric” standing position. Each is in Each has unshelled, peanut, picture a or of something head, of a hat symbol a illustration would be —an another, kind or or a crown. Each has goods would be themselves—and of the pea- human features on of the shell “generic” in the in which that sense mark, holding nut. In each one hand is meaning law, in trademark term is used something, mace, a cane or a goods involved, descriptive purely of empty. symbol other hand is Each is class, aor characteristic thereof. their Vandenberg, basically a male version a “human- of and Pro- Trademark Law peanut ized” two-kernel unshelled —the Appellee cedure, pages is nut, of same kind not different kinds register, pic- attempting such a not They of nuts. not different kinds us a before is What we have ture. animations, as, example, animal, of is not intended which show peanut. insect or bird forms of a origin rather their and it produced form of a little has been man, Although appel- board found that having body, part a as of his peanut lant’s “humanized has major feature of the known in become well the trade and to double-kernel, peanut, unshelled the same general public as an indication of peanut type unshelled is of opposer’s products’’ origin (our em- major of marks. feature appears phasis), the board to have felt necessary disregard respect to “Fit For A the words With basic and obvious similarities between by appellee “prom- as King,” referred only the ferences, and consider their dif- they are, fact, inently printed,” rela- considering likelihood of inconspicuous, tively when the mark is confusion, “a because of whole, and on one viewed as obviously descriptive pea- is specimen this court labels submitted to products pea- nuts derived from appear at all. We do do apparently From this it nuts.” reasoned significant part deem them anyone in the business is purposes for the mark this use and entitled to “marks con- regarded appellee’s mark must Thus sisting comprising of or fanciful or symbol simply above-described as the representations grotesque if peanut. a humanized form of sufficiently such marks differ from likelihood of con- to avoid likelihood * * deception fusion, or under sec- mistake in trade. *. [Cases confusion cited.]” (15 ours.) 2(d) (Emphasis Lanham Act U.S.C. We are of 1052(d) ). 1052(d), fundamentally 15 U.S.C.A. § § 920 reasoning. Columbia, Likelihood of District erroneous fusion, in William Waltke pur- deception George Co., & Co. mistake H. Schafer & type, App.D.C. chasers in of this which F. situation said: this considered times been “The case is not free diffi- predecessor, court and its cannot culty, but where there is doubt merely predicated on a consideration courts resolve it the new- themselves. differences comer. Lambert Pharmacal v.Co. (See follow- infra considered Mentho-Listine Chemical ing our relied consideration the cases App.D.C. reason this board.) is, as has been said court course, once, Of no can be restrained more than that the field from recognized right person may his to illustrate select a trade- practically goods, pictures unlimited, mark because purely right descriptive hence there pinging of them. The no excuse for im- his upon, closely ap- “humanize” a form a even proaching, man, trademark, little entirely an of his business Appellee rival. & different matter. is in O. W. Thum Co. Dick- exercising inson, App.D.C. 306; here sense Florence engaging Manufacturing public, member of the the Co. v. J. C. Dowd & 178 product. nut business Fed. to its C.C.A. illustrate is, asserting open Where he does right, so he is instead, the to which we suspicion purpose ap- has, his closely is to it to do believe tread very propriate to himself some of heels successful good competitor.” will of his promotion practices, trademark and and acquire right to an exclusive to an- use This record does disclose that other man little in the form of a hu- company other business, nut promotion manized its sales as years all appellant’s the more than 40 device trademark. To follow having so, using done a humanized reasoning ultimately

board’s could lead unshelled a mark or as in adver- everyone to in the nut business “human- tising, notwithstanding fact, izing” peanuts in various forms and judicial notice, which we take that hu- claiming right to use them on the manizing product ais common device ground “obviously descriptive.” promoting and various right product But the to illustrate products. right not the to “humanize” it to form origin. Engaging to supported indicate reasoning The board its by in the nut business does not entitle conclusion the citation of four cases adopt to as a trademark a humanized neither applied which it discussed nor version of the identical nut which has to situation before it. We have already cai’efully adopted been humanized and, point- considered them trademark, ensuing by made discussion, ed out dowe famous advertising expenditures controlling of another. not consider them to be here. undisputed Reddy priority, Kilowatt, has has Inc. v. Mid-Carolina deserving Cooperative, al., mark is established its Electric Inc. et 240 F.2d designation “famous,” (4th Cir.), ap- and that dealt with a situation through spending unique $1,000,000 parently it became in trademark law. A years year Ap- for 10 to advertise humanized fantastic it. cartoon character Reddy pellee did not enter the field named Kilowatt was with its used for two (1) purposes: until as a trademark after that or service thoroughly promotional had been fame connection established with subject supplied by and is to the rule that all doubts public material owner his (2) are to be resolved it. Over 40 product utilities and to denote the ago years Appeals supplied by the Court of utility for the or service com- using In promotional material the Judson court reached panies case the non-infringement by public. De- its conclusion of supplied them to steps. repre- named mere First held that the another character used fendant fashion. ain similar sentation of a can flow- Willie Wiredhand with material infringed Willie from claim was made that it merely was a No Reddy. into toilet bowl public descriptive that the “common The claim was element” imitating, right confused defendant defendant had use. was many postures sit- step Willie, next was to hold that defendant Reddy had a uations in which show the material “by plaintiff person licensees. The Court sort who would normal- ly expected it, is, by Appeals dis- District Court’s to use affirmedthe suit, F.Supp. If woman.” It missal of the said this was “one of the anything advertising.” pertinent the instant devices in there commonest finding held defendant case in the it is was entitled em- alluring ploy young using old and animated are an “an characters woman product.” Quoting nobody play “South common and that device Pacific,” nothing using it said monopoly like them. “There the idea of dame,” the frame such char- The court mentioned which defend- including Mr. name “Planters acters ant was as much entitled take advan- present tage plaintiff. Peanut.” as the Insofar as was It also found concerned, appellee cites this case parties’ the other elements of the labels proposition for the “that there are prevent to be such as would tend to rights fusion, exclusive in mere animation or marks, such as word back- grounds, slogans. humanization” and that is all rele- laudatory But as vancy figures, it has. No issue was the salient present Reddy of Kilowatt the decision case. was that both free, along others, were with to show Dunaway Hygienic Corp. Judson product showing in use so as the Co., (1st Cir.), Products 178 F.2d 461 purchas- was toas confuse the infringement awas suit trademark ing public get- product as to the it was competition. prod- and unfair Plaintiff’s registration ting. present No issue was “Sani-Flush,” uct was a chemical clean- Dunaway in the Judson case. radiators, er for toilet bowls auto product and defendant sold a Sears, similar Harad et al. v. Roebuck & under the trademark (7th Cir.), “Vanish.” 204 F.2d 14 awas part relevant of infringement the case involved the competition and unfair suit figure use as a trademark of of a involving marks used on trusses for the pouring woman in the act of appear of hernia. control It does not bowl, can a plaintiff into toilet particularly on to us relevant to the by had a held valid here. mark issue Plaintiff’s was the figure court. Defendant also used the of oval, word SPORTSMAN within an al- pouring powder a woman in infringed the act of leged by figure a of a figures from a can into a toilet but the an runner within oval surmounted different, plaintiff’s being were “a rather words ACTIVE MAN. The trial court dignified matronly housewife” and infringement the latter held to be an very young “a defendant’s slim Appeals Court former. The housewife, perhaps bride, saying reversed, ultra-fash- the evidence ionably dressed, very skirt, i. in a reproduction figures e. short showed wearing apron, an very elaborate stand- athletes was common ing graceful exaggeratedly bending in an goods. class It is not clear what posture pouring proposition into a watereloset bowl the board cited the case for. expression with Appellee’s proposi- an of almost brief ecstatic cites for the delight rights her face.” The court found there can tion that exclusive “sharp figures. goods, contrast” between point, and tion between the not in to illustrate rights standing proposition that there merchandise and trademark itself for the containing ad- in illustrations added “arbi- protection a common can be no trary” matter vertising evidence which could function is no device. trademarks, a com- peanut is said: that a humanized here anyone device, has been used mon hold, therefore, appel- “We appellee start- appellant until other than rights lant’s trade-mark limited was ed do so. No figure girl to the in substantial- present Harad et al. ly position regis- in its shown figure Knitting tered Coast West Jantzen Mills and. diving girl generally. Knitting Mills, 182, 18 C.C.P.A. 46 F.2d 2 decision tion. F.2d figure tended the rear. ings, to-dive lar cant’s on the end swimming figure rehearing opinion under review: position with arms usually the act 18 C.C.P.A. refusing similarly girl appears suit, diving denied with Jantzen’s with arms colored red. Commissioner bathing cap to sustain diving, clad board have mark extending to been opinions, was an an about- had standing wearing legs ex- opposi- a simi- 3a stock- appli- said lihood cluding : confuse the into water. We arms act of tiveness hack as diving board diving board adds “We think no ^[******] dissenting judges posture of confusion was diving if limbs appellee’s about to posture through extended, girl purchaser further distinc- believed her mark.” spring standing add that the obvious, arms held inas girl air, would with with on a dive like- * * evidence, inis “It majority “The effect of the hold- girl representation of pictorial probably will be that trade- swimming has been suit in a clad kinds, rep- different before either others resenting diving girls, bathing field. parties entered the instant suits, slightly postures, different representa- may a that such said be registered, resulting will be in con- appropriated in be could not tion any Congress sought ditions which to for such mark trade event as prevent.” goods such a since nearly A case much more in merely the be would position in which and mentioned the board in the themselves they ordinarily used and others court’s decision International Latex engaged would in this business Corp. I. B. Kleinert Rubber right their so illustrate have 104 F.2d 26 C.C.P.A. 1321. This therefore, goods. facts, lead These design Appellee mark was case. ad- differences conclusion the the is “a Appli- mits it close decision.” particular representa- the between pants, cant’s for babies’ rubber girls positions their the and tions drawing in the consisted outline of two that confusion trade babies, panties only, clad one shown likely.” [Emphasis be would facing left, profile, the and crawl- ours.] baby, ing. at the The second and first, stooping rear of was of the factors referred to in Neither stretching holding panties and passages present in this the italicized baby. Opposer’s majority first mark A the court in the crawling baby posture judges strongly picture of a in a case, two dis- Jantzen senting, considering rear toward after its back and distinc- with the ob- readily distinguish server, looking child could left shoul- them. over back panties and said: der, The court in a shirt clad The court on one foot. sock a shoe true, argued course, “It is Commissioner, agreed, whose with appellant, counsel for by side affirmed, that on side decision it distinction between a head and lion’s pos- comparison could not “these head, when examined for wolf’s likely sibly confused, nor is it be purpose comparison, the readily person thoroughly with either This, however, noted. familiar distinguish other.” would applied not the test to fail agreed also [Emphasis And it ours.] of this character. a rea- “If there with the statement: repeatedly “We have held that purchasers probability that some sonable general purpose the law mark the second deceived would be prevent person is to trade-marks registered.” court should not be trading good of an- from will length quoted carefully reviewed prevent confusion, other and to mis- case, supra, declined Jantzen take, and deceit.” unanimously concluded it, and to follow opposition because, as follows: was sustained registra- judgment, court’s “the pre- given issues have “We by appellant and use of its mark consideration sented careful confusion, would be to lead to light principles announced many purchasers cause would of lubri- Knitting applied Jantzen in the cating purchase motor the oil oil arguments case, supra, and the Mills when, appellant, fact, as a matter of appellant, presented counsel purchase desired opinion that the and are of quoted appellee.” The court also nearly resemble so passage approval a from the Commis- concurrent their another apropos which seems sioner’s likely to cause would be confusion here: public mind mistake “There seems to have been no least, purchasers. At and deceive good why reason so as to the doubt is a reasonable there adopted after the had marks, similarity confusing widely used its should doubt settled that such and it well possessing selected mark have new- resolved must be many features similar to those of Prod- field. American comer opposer’s mark.” Braithwaite, F. ucts v. Herbert Co. Patents, C.C.P.A., 532, 19 53 F.2d In Bielzoff Co. Products v. White [Emphasis Ltd., ours.] 736.” Distillers, Horse F.2d 722, opposer, the owner of C.C.P.A. symbol marks eases on other including Horse,” pic- “White a mark equally sup court which decided this representation of horse, a white torial present port we take of the the view whisky, successfully opposed reg- Co., Ltd. v. Wolverine-Em Oil Gilmore variety “Red Horse” for istration Refining 532, Co., 69 F.2d 21 C.C. pire Applicant’s liqueurs etc. mark con- opposition registra 943, was an P.A. together words rep- of the with a sisted picture of the head of lion of a rearing in red resentation silhouette together open, with the mouth a rider with with horse thereon. registration Head,” lubricating “Lion oils. owned of the also words Horse,” country. mark for the used in Opposer’s same was this “Black open, with were held of a wolf mouth to be of the head the together properties descriptive Head.” and the sole with words “Wolf’s argued by applicant Appellant likelihood confusion. was was wholly upon compari- dissimilar, argued that even a child were marks 924 recognize picture readily the differ- er’s well-known mark was the son would smiling negress wearing of a a red ban- Horse” “White ence between court, danna around her head and shoulders. trademarks. Horse” “Red Hatfield, In (per Aunt Jemima Kirkland Mills Co. v. unanimous in a Distributing Co., App.D.C. 248, 1919 said 48 and also J.) confusion held 162, registration, C.D. the mark denied this: confusion, because of likelihood of was if clear seem would “It laughing negro wearing male a colonial register its appellant entitled type holding hat and his hands use trade-mark ‘Red Horse’ Opposition slice of red watermelon. beverages in view of alcoholic despite many (ob- sustained differences ‘Black Horse’ appellee’s ‘White any child) vious to between the two producers trade-marks, other Horse’ In marks. Aunt Jemima Mills Co. might beverages well of alcoholic Milling Co., App.D.C. Blair argue entitled were attempt F. the same fate befell the trade-marks of such picture full-faced, Horse,’ ‘Gray Horse,’ as ‘Brown clean-shaven, smiling negro male cook pos- Horse,’ ‘Bay Horse,’ ‘Sorrel sibly cap apron, a white bear- use on marks for other similar plate in one hand a wheat cakes beverages. such and in the other hand a cake turner. registration of “That the use beverages on alcoholic marks Wayne County Preserving In Co. v. appellee’s destroy value of would Olney Canning Co., Burt 279, App.D.C. apparent marks, registered is so 1909 C.D. likelihood of con- require no discussion.” fusion opposition was found and an sus- reversing tained, Office, the Patent Similarly, seem clear it would between two Applicant’s for canned foods. appellant’s present that the value length figure mark was a full trademark, unshelled humanized military Opposer’s colonial officer. advertising expenditures at up

built mark was a bust of a similar officer. rate of the annual ten times said, court duty inter alia, “it is the “White have been behind shown to protect prior reg- court to destroyed by Horse,” use would be istrant.” un- other goods. for identical were, course, These cases under the 1905 act but the confusion in trade opposition of the owners On the 5(b) clause in section thereof differed Horse,” Commissioner of “White respect in no material here from that held, case, there in another Patents 2(d) present of section statute. likelihood confusion would be anything, If the former statute was whisky the words concurrent slightly narrower. The law has picture Stallion” “Silver longer been well settled for a time than standing legs. hind White on its stallion dealing court has been with the Distillers, Berson, Ltd. US Horse problem to the effect that the field from PQ 208. which trademarks can be selected is un- jurisdiction predecessor limited, of this there is therefore no excuse picture court, approaching trademark in two for even the well-known involving op- “Aunt Jemima” competitor, sustained trademark of a that to do so reversing positions, the Patent gain- Officeon raises “but one inference—that ground confusion, ing advantage of likelihood of reputation the wide quite by appellant dissimilar to pictures established bearing goods. oppos- mark,” for same its that all doubt Milling Co., supra, App.D.C. Aunt Jemima Mills Co. v. Blair text at 270 F. at mistake, implies confusion, tried or which that others have whether as to brought symbol, applicant use the resolved has not deception is to is newcomer, especially to our attention of evidence where scintilla anyone is else besides which itself has is established any appreciable time, using inexpensive for applied or is an famous product people a bought by humanized male two-kernel unshelled kinds peanut identify peanuts and other or other Peanuts much care. without only goods. products. nuts or nut unsupported findWe an nuts are by applicant statement aspect is the An unusual which reads: male, humanized, two- fact peanut “The symbol peanut is kernel, which unshelled * * reg- has been used and opposer’s has not been static trademark istered others in different unchanging, various has assumed but or forms.” changed guises. topper He has up Spanish-style shawl and taken hat self-serving statement, ap- Even in this plicant items, which cane. Premium with his symbol does not refer to the par- appealing form of are peanut a humanized with characteristics children, repro- ticularly young have opposer’s symbol, says “repre- It would him in various forms. duced peanut,” sentation of a which could mean improbable that he should at all not be anything picture peanut from a appear a crown. adorned with body elephant. one used as an probability that makes such a reasonable confusion, 2(d), of section in the sense One case which should be considered likely. at this time is Planters Nut & Chocolate Company, Inc., Co. v. Sessions 128 US board is reversed. decision PQ opposition pro 449. That was an ceedings involving,

Reversed. a trademark for peanut butter, looking sym a rather odd presume, which, supposed bol I Judge (concurring). MARTIN, peanut. a humanized board Judge I in the result of RICH’S concur applicant. held in favor of Whether only pur- because a doubt toas registered was ever ac my mind confusion is aroused in chaser tually appreciable time, used for an contemplate when I the concurrent use being used, now is not revealed. opposer’s applicant’s marks on case, however, In that goods. respective This is their registrations party ap- third plicant which the because of the individual characteristics record, introduced into the humanized at issue of the two peanuts, two consisted of humanized very different, characteristics butter and the other for ice significance but because of the long cream. How these were used or concept itself which been has es- whether used now is un- long tablished exclusive known to me. (although interrupted as be- discussed low) usage years) (37 of a humanized all, though apparent All in even it is two-kernel unshelled iden- male regis- there are some incidents of tify goods. find, Now we after this peanuts, of humanized tration there is length time, using brought nothing my that has been concept purpose. same proves opposer attention my usage (inter- enjoyed Insofar as of the word “ex- exclusive though usagé concerned, times) clusive” is even rupted there indication in the some record that unshelled to iden- male two-kernel problem goods, nuts, confections, tify has had a constant i. nut e. endeavoring protect products. its trademark and nut 926 (dissenting). Judge comprising WORLEY, grotesque fanciful Chief or representations peanuts if such Company- which the Crown The mark sufficiently differ from that using since 1953 and has been

states as to avoid likeli- register is: to- it seeks hood confusion See: trade. Reddy Kilowatt, Inc. Mid-Caro- Inc., Cooperative, lina Electric et al. USPQ

[240 F.2d 112 194 282] (CA 4, 1957); Dunaway Judson Corporation Hygenic [Hy- v. The gienic] Company; Products Hygenic [Hygienic] Products Com- pany Dunaway Corpora- v. Judson USPQ tion F.2d [178 84 461] 31 (CA 1, 1949); Knitting Jantzen Knitting Mills v. West Coast Mills USPQ [46 F.2d (CCPA, 182] 1931); doing al., and Harad et busi- Engineering ness as Industrial As- the marks which the One of Sears, sociates Roebuck Com- Company opposition its Planters bases pany 14], USPQ [204 F.2d (CA is: 7, 1953). “It seems clear from the above illustrations that the marks of the distinctly different every respect pur- material and that would not chasers be to at- products tribute sold thereunder to single source.” holding Whether the board erred single is the cide, issue for this court to de- necessarily and our decision is by Congress trolled the standard laid 2(d) down in Section of the Lanham Act which states: dismissing registrable In a decision “Sec. unanimous 2. Trademarks on opposition, register principal the Trademark Trial and Appeal Board said: products subsequent poser’s mark must adoption prior gaged a humanized whatever “ obviously particular * * products by adoption representation goodwill * descriptive derived from Considering, not, design sale peanut, preclude therefore, of nuts necessarily consisting attaches to rather peanut per others design registra- however, and peanuts, nut than of lie en- op- se. mark or trade name to cause confusion or mistake mark which registered or to the United States applied deceive principal in shall nature unless tinguished goods “No trade-mark ^[*] “(d) abandoned, be refused to the purchasers: Consists *- in the Patent Officeor a so resembles a mark applicant may ^[*] it— as to ^[*] previously * * account of comprises another and likely, which the applicant, «(cid:127) others when dis- its allege only “prior reason- exclusive” use I error in the board’s find no ing the between or conclusion. As extensive use.” Thus it under- criticism, levelled position opposer and the standable that does not chal- board’s lenge problem by majority, applicant’s allegation no at it the over the latter. former to choose the “The capable wats is not ex- of broad clearly Judge KIRKPATRICK so As clusive appropriation, been and has imagine out, to points difficult it would be registered by used and others peanuts with humanized so-called two ” ** (Italics different forms. here. in common than is the case less supplied.) in- circumstances it seems Under proof applicant’s Concrete statement escapable the reason- that the result of is found in Planters Nut & Chocolate accurately majority, or more USPQ Co. Inc., v. Sessions give put, majority, the nominal is to Company perpetual trademark Planters monopoly Applicant entitled to the any and all domination registration it seeks. The decision of Indeed, major- peanuts. humanized the board should be affirmed. virtually go ity far in- as to to so seems pleasure to over at its Planters take vite Judge KIRKPATRICK, (dissenting). Company has the Crown mark which I think that the court’s decision in using which it seeks been since goes beyond boundaries register. to before it and of its function Although, generally true in as is respect thereto. precedents, cases cited If the Lanham Act read “No trade- sufficiently by point board registration mark shall be refused unless here, control it seems to me those to by likely its use would be give greater support to the board’s cause confusion to or mistake or to de- reasoning than comfort to criticism purchasers,” something ceive sort, of that majority. I find Nor do agree majority I could with the majority cited the decisions ficiently suf- “The issue is likelihood of con- control. fusion, deception mistake or under sec- concurring quite correctly 2(d) Act,” tion of the Lanham but what concedes “characteristics” of says Act is that no trademark shall very instant “are * * * be refused “unless it different,” yet concludes that “con- registered resembles mark humanizing cept” kernel, un- two likely Office Patent as to be together “exclusive” * * * to cause confusion” I etc. see years, pro- for 37 are sufficient justification writing require- no applicant’s hibit mark. ment of resemblance between the marks out the statute. place, In the first I am aware of no authority, statutory otherwise, which, likelihood of confusion un- logic, why in law or reason a trade- statute, no applica- will der defeat an granted monopoly register should be on the a mark must be a like- humanizing concept arising the wares one lihood from its resemblance to sell, authority registered and no already seeks is cited an one. If there is theory. support Humanizing two, between resemblance one’s wares is old as disqualified, commerce itself is not otherwise the mark always thought was, and I had absolute, or it is be, perfectly least should free for oppos- to do. immaterial it is that the er, advertising, means of his Second, has cre- 2(d) nowhere Section does Congress appli- a situation where use of the ated mention “exclusive” or “non- mark would be cant’s proper use. Even if it cause exclusive” were a impair considered, or would factor to be fusion the value of does not his they good only thing upon (the opposer’s) will based the mark or the namely, idea of advertising. have in consid- the his Such created common— humanizing product parties, the of the proper un- issue of erations are where an peanut. in this case competition involved, but the fair is is the defined I here extent of a cannot believe what that this is right statutory right -namely, Congress spoke to intended the when of one it — resembling certainly, a trademark. amount of mark No another — advertising opposer’s least, can representa- stretch an where the marks are rights point prevent things. physical where can he an tions This registration by the marks competing others of in which instance the trade- ordinary English words, which do not resemble his.1 marks are similarity which case the ideas of the two marks under consideration embodied be a consideration. simply in this case do not resemble frequently convey ideas, Words abstract resembling another, close to come one and, since abstractions com- cannot be possibly and no one could mistake one by eye pared ear, mean- resort being sug- for the other. The human helpful. is sometimes Here the gested by opposer’s is a dude—- pictures drawings are —line —and spindly-legged creature, top hatted, necessary all that is and, look at them spatted cane; carrying monoeled, they wholly inasmuch as un- suggested by applicant’s, that a rath- like, neither the nor the Patent Office coarse-looking monarch, crowned, er can, go need, court further. carrying robed ermine and a mace.2 majority It seems me that majority picks out a number of proceeding upon assumption that it particulars says in which it duty court in a trademark appear are similar3 but does protect case to value willing quite say taken as opposer’s extensively expen- of an sively they wholes resemble another. Ex- one good advertised trademark and cept purely concept abstract applicant’s will rather than an un- humanizing vegetable every product, statutory plain provision regis- der a point majority’s catalog of simi- goes majority mark. ter his completely would larities be met two length considerable to stress the drawings, one of Lincoln Abraham opposer’s value trade- stovepipe hat, holding frock coat and up expendi- built Emancipation Proclamation in hand tures, destroyed by would use and Sitting Bull, other of and the with feath- applicant’s mark. To headdress, wielding er a tomahawk. One conclusion, majority reach its must put be hard would to it to find a re- upon a have based resemblance semblance there. idea stressed in abstract advertising physical competing resemblance rather than in the marks, any finding This, think, between I marks. is not in accord another resemble one would have to be intent with the of the Trademark Law. Shakespeare Co., 506, (with exception They re F.2d 1. In 3. to be con- 969, court, later) 48 C.C.P.A. refer- as follows: sidered Each ring In to its decision re Con- Deister man, little 1. is a based an un- Company, centrator F.2d peanut, pointed out “the irrele- C.C.P.A. standing position, vancy attempts by advertising to cre- something head, 3. with his rights exclusive ate human features 4. with the shell monopolized cannot be under (although the features are law.” possible as different as it to make them), 2. The well the two describes sophisticate” holding something hand, “tall and suave as a “stunted, midget-like and a in one gleeful king.” being empty. other

Case Details

Case Name: Planters Nut & Chocolate Company v. Crown Nut Company, Inc.

Court Name: Court of Customs and Patent Appeals

Date Published: Aug 15, 1962

Citation: 305 F.2d 916

Docket Number: Patent Appeal 6812

Court Abbreviation: C.C.P.A.