*1 (Patents) 42 C.C.P.A. CO., Appellant, CANDY PRICE CORP., CANDY MEDAL

GOLD Appellee. Appeal

Patent of Customs Appeals. 22, 1955. 28,1955. April

Rehearing Denied Washington, D. C. Atkins, James C., Washington, Law, D.

(Russell L. appellant. counsel), for , Tag Leavenworth, Kelton Watson Woodcock, York gart, New A. David appellee. City, for GARRETT, Before O’CONNELL, JOHNSON, WORLEY, Judges. COLE, Associate Judge. JOHNSON, appeal This is an from Patents, speak- of the Commissioner of through ing the *2 trousers, slip- and Turkish Interfer- red Turkish Trade-Mark the Examiner of pers. stipula- opposition forth in the to It was set ences using by ap- promoted registration opposer tion that sales persons to pellant. dressed in Turkish costumes coupons distribute its for It was 9, 1949, appellant, Price stipulation op- further in that stated application, Candy Company, filed an poser candy priced as sells its both low 575,159, Office in Serial candy half-pound pound and as bars the Trade-Mark for under packages. stipu- It also is shown in the seq., 1051 et Act of U.S.C.A. § 7,000,000 lation bars sold upon mark “Turks” for use n in under its label in the mark of first use of The date figure 39,000,000 in increased to bars among states was the several commerce January 17, alleged application as in above, application As was examined registered passed publication pursuant is. to sec- which is for 12(a) Appellee’s Act of Trade-Mark mark which is used duly published oppose registration, in to and the mark was addition February 6, having the aforementioned characteris- in Official Gazette on additionally 1951, appellee tics, may filed 1951. On March be best registra- directly quoting decision to said its notice from as tion. follows: “ * * * registration appellee Opposer’s In its notice of consisting alleged composite owner of trade- is a is the script registered 419,561, in in the name [sic] mark No. ‘Bonomo’s with on Febru- CHEW Patent Office “TURKISH TAFFY’, ary 19, 1946, candy, in vertical which includes ING all prominent “Tur- column. At the left of the words is figures relatively large representations shown a kish” and kettle costume; thereunder, small it has used its a fire and two Turkish figures long garb prior pouring and since a date in Turkish trade-mark January mixing ingredients date kettle. which is the into the right words, .'applicant; is still addi claimed At the figures using wrappers garb tional Turkish are * * *n sold; taffy. pictured pulling which and that reg- applicant seeks to reasoning Examiner-in- by op- marks used ister so resembles the likely, poser as to Examiner of Trade-Mark Interferences candy, cause confusion and mistake as follows: The words purchasers. and to deceive registration supplemented char stipulation clothes, A Rule 25 of this acters dressed court, U.S.C.A.Appendix, was filed thus render attorneys representing par- registration. appears stipulation ties. It was further stated that since the registration labels and words “Turks” and “Turkish” are sub stantially meaning, appear bore the words “Turkish identical Chewing Taffy,” ance, sound, and above the use of appeared by opposer these words the earliest word “Bonomo’s” is not suffi confusion, “Schwarz’s,” and in label the word sub- cient to avoid the likelihood of sequent labels the word “Bonomo’s.” with an otherwise America, Furthermore, opposer’s Corporation labels and trade- mark. Celanese registration’at pic- all times bore Company, E. I. DuPont De Nemours & figures four which included of 154 F.2d tures wearing fez, respect. red people each was cited in this opposer’s mark in wheth- dominant in this case is issue The basic that, by itself, identi- it could the sense er the fy likelihood would cause "Turks” *3 pur- mistake, deception fusion, of to the conclusion Since we have come appellant’s applied to chasers the the word “Turkish” is namely candy, fact goods, in view mark, opposer’s dominant of the above appellee-opposer has used case, holding feel that supra, of the Celanese the namely, “Bono- cited the accom- with the mo’s Turkish inapposite. case the In the Celanese is panying picture, on registered was “Du- mark to be Clar-apel.” found that Pont Our court above, the Examiner- As stated “Clar-apel” and the opinion that the in-Chief was of the “Clari-foil,” were an used as in combination word “Turkish” confusingly similar, the addi- word picture Turks rendered of to one of tion of DuPont the surname op- portion of dominant "Turkish” the marks otherwise poser’s mark, and that the word avoid is not of itself sufficient to “Turks,” registered, was confus present In the likelihood of confusion. portion. to this dominant ingly similar not exist. Thus case that situation does disregarding word “Turkish” do not feel that the We “Bonomo’s” the surname opposer’s portion of is the dominant opposer’s mark, as the for deter trade-mark. One criterion mining done, has there still remain portion of a trade the dominant Taffy” plus picture of case, set forth in the Celanese is compared opposer’s Turks in pur supra. if a This criterion is that appel- with the word “Turks” sole likely chaser would more to remember that, when lant’s to us mark. seems indicating part mark as and use one origin of a parts respective marks these goods, is this confusing compared, simi- there is no Therefore, applying larity they do since case, present is criterion to the it, as we see sound alike. opinion purchaser our would that a case, inapposite supra, since Celanese is likely remember and use the be more dis- it should to discount by itself, an than word “Turkish” more tinguishing value of a surname mark, opposer’s other cating as indi word parts of the marks have after the other origin opposer’s confusingly similar. been found to be This out the testi seems to be borne determining question mony of a which was witness confusing similarity trade-marks, stipulated set forth in the facts wherein gen and dissimilarities therein similarities is it erally is Younghus Taffy,” should be considered. ordered as “Turkish 230, 25 minority band v. Kurlash 94 F.2d C. in a cases “Bonomo’s C.P.A., Patents, present 886. In the case Taffy.” opinion is our mark, origin similarities are that opposer’s the inconceivable that the candy Taffy,” solely contains the could ever be determined drawing and has word “Turkish” “Turkish” without the use people qualifying shows dressed in Turkish which costume, of appear other of the being people these referred to In on the trade-mark. Yet it is “Turks,” appellee in the brief as Examiner-in-Chief’s rea herent appellant’s soning while consists the word “Turkish” is the entirety outstanding of the word “Turks.” dis feature of purchasing opposer’s are that mark con similarities and candy what one “Bonomo’s” tains the words is most to remember about in addition to while We feel nothing mark contains ad- "Turkish” is not the Ex- sons stated aforementioned dition aminer-in-Chief, Keeping similarities these mind, must there- dissimilarities successfully Appellant relied upon has analyze in the fore appellee’s mark certain weaknesses accepted rules considered which should not have been determine whether struction to escape ac- from the no here. There is confusing similarity. knowledged appellee’s mark fact pictorially predominantly and labels parties must Marks emphasize group “Turks” illustrated Valpo in their entireties. Upward mil- of 50 in Turkish costume. Entrialgo y Compañía, Solis, Co. v. *4 bearing goods appellee’s lion bars of Patents, 457, C.C.P.A., 1160. F.2d 36 placed have been such and label analyzed may be But different mostly customers, chil- into the hands involved the marks to determine whether Accordingly the con- “Turks” dren. confusingly Hoffman-La similar. cept remembered most 557, Inc., Kawerk, Roche, F.2d 32 148 lasting impression in the mind Patents, C.C.P.A., common purchasing public respect portions marks must be candy bars in issue. Schering disregarded. & and cannot be 1019, Koke Dohme, in Coca-Cola Co. v. Sharp F.2d 146 Glatz v. L.Ed. 41 65 Patents, 254 U.S. S.Ct. C.C.P.A., 827. enjoined Supreme the de analyzing the two appropriation the word fendant cited rules of the above by pub “Koke” a newcomer because find, construction, when bought plaintiff’s soft had lic often en marks are viewed in their nick drink the abbreviated name tireties, “Turks” though “Coke,” even name of “Koke” or do not plaintiff’s was on label alike, not we do sound basis pointed out Justice Holmes “Coca-Cola.” confusingly find similar. them any weakness Coca-Cola’s portions of Even if the common ground upon appropria was no “Turkish,” marks, “Turks,” are con in abbreviated form a newcomer sidered, the word we do not feel may justified to the detriment opposer’s mark “Turkish” in original owner “Turks” con as to render so owner, public interest. That but also the fusingly entire circumstances, such is entitled Furthermore, the different only by way injunction to relief analyzed marks are features of both damages infringement. also but and “Bono- feel that Co., supra; Mis Co. v. Koke Coca-Cola sufficiently differentiate mo’s” Mfg. hawaka Rubber & Co. v. S. Woolen mark from the “Turkish” Kresge Co., S.Ct. S. U.S. “Turks” taken alone so that 1381; Morrell & Co. v. 86 L.Ed. John similar. marks are Doyle, Cir., 97 F.2d 232. foregoing reasons, we must For recently the same basis this court therefore reverse applicant’s “Palm held that Examiner-in-Chief. Wave,” enhanced the illustration Reversed. therebelow, the ocean waves was con- fusingly Wave,” “Ocean similar to owned Judge O’CONNELL, (dissenting). goods. another on identical and in use Goodall-Sanford, Inc., F.2d re decisions rendered Thé concurrent the Commissioner of Patents office of .1 authorized to state that am GAR- Medal’s Gold RETT, concurs in this dis- .. should be affirmed for the. rea- sent- “Turks”