*1 Wenderoth, Washington, Ernest F. INC., DRUG, Appellant, STERLING (William Weigel, City, D. C. F. New York counsel), appellant. M-A PHARMACEUTICALCORPORA- Liberman, City, William R. New York Assignee TION, A. Charles appellee. Susslin, Appellee. Judge, Before Chief Appeal RICH, MARTIN, SMITH, AL- MOND, Judges. United States Court of Customs SMITH, Judge. April 22, 1965. application, 118,013,

An serial No. was April 17,1961 by register filed preparation “M-A” for a medicinal tablet form for relief of distress or dis- indulgence comfort associated with over in food drink.

Registration opposed by appellant was pharma- of “M-O” for a preparation consisting ceutical of milk of magnesia and mineral oil. The Trade- mark Trial and Board dismissed opposition (138 651). USPQ pointed As out the board: applicant dispute Since not does opposer’s priority or the parties, solely upon ques- this case turns tion of whether or resem- not the blances between the marks here volved are to be Judge, Martin, decep- cause confusion or mistake J., dissented. * * * tion. marks, After board stated: regard marks, they With of course similar to the extent that letters, comprised of two the first of which are identical. When viewed there entire- [sic] ties, however, opinion it is our “M-A” differ in both sound and reasonable likelihood in use. Cf. confused Company, Holland-Rantos Henry Laboratories, Inc., [195 USPQ 39 CCPA 877] (CCPA, 1952). present appeal raises as its sole finding. issue the correctness of the above *2 1017 challenges similarly Appellant “M” the correct constitutes “the first and important finding part” most of as to letter combina- the the board ness of of confusion, basing posi tion marks. of its likelihood chiefly terms “the virtual tion on what it appellee While resolve issue would the ‘M-O’, identity ‘M-A’ and by comparison parts here the terminal of of and the substantial of the marks and find that the letter “O” applied.’* to which are appellant’s confusingly in is not mark appellee’s “A” similar to in the letter Appellee party placed numerous third mark, predicated the decision must be on registrations support its in to the record a en- position includ- that letter combinations by tireties, Upon as was done the board. ing the initial “M” are common in letter agree comparison, we with a pharmaceutical Appellee’s field. brief board that the marks “differ regis- points party out that all third in both sound to “M”; trations include Initial letter being likelihood of their reasonable three involve various forms of the let- confused in use.” alone; eight “M” the initial ter include “M” in combination: We letter a two letter therefore affirm the decision “M.D.” “MS” “M-F” board. “MV” “MG” “MH”. The are letter remainder three Affirmed. starting combinations, or number each McK, “M”, including MC-47,

with MVM, MDD, MPL, MEO, MFC, MHS, It seems reasonable to conclude that MRT, MRX, MVI, MSM, MSD, MPR, when marks so similar as here MLV and MPO. applied substantially are same goods, through sold the same over-the- recently We occasion to had ob counter of trade to the channels same Publications, in serve Conde Nast purchasers, class of there would be a Greetings Corp., 1012, American certain likelihood of confusion in the “regis 1176, 51 CCPA that third average purchaser. mind At least usage may trations be considered obliged I feel we resolve doubt on tending registered that show a that score in favor of the may mark be a ‘weak’ mark and thus re the newcomer. United States narrowing opposer’s rights in sult a of an Tennenbaum, Time 267 Jacob therein.” 327, F.2d 46 CCPA 895. by The initial letter “M” is shown it- If the score third marks con- identify particular self to no source any pur- sidered appellant in the in which fields pose in this “M-A” contest using respective alone, they already pres- an reflect only possible marks. distinction particular ent in this state confusion appellant denoting which can assert as place. market Yet add more. we origin specific source or is use of the specific goods, combination its “M-O” on Such a result would be avoided ad- hering which consist of oil mineral and milk of doctrine sound established magnesia liquid prima- thirty years ago,1 form and are over where this court rily a laxative. refused to some one hundred consider saying: party registrations, third argues Appellant “the that letter ‘M’ “ * * * important purpose constitutes the first most of the trade- One argument part registration of both marks”. The is mark law to aid legitimate foreign untenable in view of the fact interstate commerce, that, here of other record it seems to us pharmaceutical requires spirit, field letter in letter and it McCreery Co., 1. Trustees for Arch Preserver Shoe Patents v. James & 6CPA 1507 will, stumbling blocks, helping construction to the fullest one, which no hin- prevent confusion, possible, extent dering all. by inadvertence, If not add thereto. incautiously Even after Pandora re- acting mistaken construc- under a box, leased all the from for- evils her regis- statute, improper tion of tunately Hope. there still remained So grant- trations heretofore been *3 with me. ed, such are not remedied errors supplementing an- them with still yester- MARTIN, error, other day and mistake of precedent should not constitute a Considering whole, I marks as a to-day for law of to-mor- confusion, them mis- find to cause row.” take, deception when used on That this court was the settled law of parties. medicinal certainty years, supplying for stability litigants so essential to the court alike. During years the court did not belonging

concern itself with strangers suit, restricting to the itself competing marks alone. Likeli-

hood of confusion issues were deter-

mined, main, by comparing entireties, including sound, spelling, appearance and mean- Application of David TANNER. ing ; goods; the chan- nature trade; purchasers nels of class intended; whom the were United States Court Customs following policy resolving doubt the newcomer. Old fashioned April 30, tools, 1965. perhaps, having but virtues certainty consistency.

It was not until a tool in form new

of third marks was extracted from uncertainty Pandora’s box that consistency began replacing the status

quo long enjoyed.3 so It has never been why

clear to me court felt a real tool, particularly need new one experiments which our with third proven to be of such

a frail and unreliable nature.

Despite my regarding individual views stranger’s marks,

relevance of spected I have re-

what I understand the

views be and considered them when

required compels to do so. Candor me say, however, that in no wise have Almond, J., J.,C. dis- contrary, aid. On served as useful they merely muddy the water sented. Corp. Beran, Party 2. Shoe of America Shoe v. Juvenile 3. See Third Trademarks —A America, Confusion, Against A Or Just Factor (1959). Rep. Confusing Factor?, COPA 868 55 Trademark