TROPIC-AIRE, *1 COPA Graw-Edison substituted) INCORPORATED Company, assignee (Mc INC., Doing PRODUCTS, APPROVED Chemical Business as Windsor Laboratories. Appeal

Patent of Customs Court States

United Appeals. Patent 8, 1960.

March 24,May

Rehearing Denied Chicago, (Robert Trexler,

Olson & Ill. Wolters, Chicago, Ill, M. and Charles Sturtevant, Washington, C., L. D. appellant. counsel), for Crowell, Washington, Kimmel & D. C. (George Kimmel, Harry P. Crowell A. Weaver, Washington, David Paul C., counsel), appellee. D. for RICH, WORLEY, Judge, Before Chief SMITH, Judges, MARTIN * Judge H. KIRKPATRICK WILLIAM Judge. RICH, appeal This decision of (117 of Patents Assistant Commissioner USPQ reversing 104) the decision of Interferences which sus- Examiner appellant’s appellee’s tained registration application for trademark Serial “Spray Air” for compound reducing air bacteria and eliminat- borne odors,” first in Febru- offensive ary asserted. opposing the pursuant O’OONNELL, provisions Judge States Senior District United Pennsylvania, District of des- Title 28 U.S.O. Eastern Section participate place ignated

729 goods opposer and its mark of to which word heaters,1 predecessor being mark the for automotive one “Tropic-Aire,” periods of extent and the and for air other the ventilating goods Op- relation of to motor vehicles.2 and the applicant. respect additionally those of the It of is with on evidence variety the to on the ul- of of this evidence mark a wide on of goods.3 timate issue In- that the Examiner terferences and the Commis- Assistant dispose ap- of At the outset we opposite sioner reached results. plicant’s the differences contention The examiner the with- sustained “not in themselves the marks are finding significance.” that: In this out considerable regard points outline to an establishes that the evidence background mark as subject surrounds used for hot water was drawing application and illustrated in the passenger heaters cars and buses opposer’s mark in “Tropic-Aire” 1951; addition states to for bus seats line printed one 1950; from 1938 tioning condi- to for air printed application “Air” is while equipment for motor vehicles right “Tropic.” of We including to the below and from 1938 trailers to speci- note, applicant’s however, that on present; for window air condition- application, label, 1956; men filed with the 1950, 1951 and “Tropic” appear in sewing “Air” baby for riages car- machines and being places, 1950; distinct one occurrence and for 1949 and alleged, the other is two lines as but electric kets, electric blan- background single line, is used sheets, and the electric electric heaters only Also, dif- types, occurrence. radiant and fan fering typography used. simi- plates, electric roasters and larity appearance identical and the at 1951. the marks are identical. tially sound sider significant. clude that for minor word marks and connotation leads purposes we do not con- Both are essen- display us this con- case lishes that chemical deodorizers are commonly used in connection with air conditioners or ^[******] “Opposer’s ventilating further estab- deodorizers—would be chasers. confusion or mistake or to deceive The marks Air” when issue — here chemical room us is whether result in vices tioning ical the same stances, sold “Under deodorizers. by the same sources channels of ventilating fans, appears to and that air foregoing trade equipment clear that as chem- through condi- purchaser familiar with the took the of ten wit- Tropic-Aire mark on (no air condition- attorney appearing nesses to cross- ventilating equipment applicant) examine to establish the 15, 1954, blankets, Reg. January 3, 1928, for electric 237,236, ber 1. No. issued temperature January 1948, republished 3, tric tberefor, controls renewed 1946, electric convection and reflec- Act the Trademark beaters, seq., 28, tion air combined electric air § U.S.C.A. 1051 et on December April fans, issued 1948. 10, 1956, subsequent filing Reg. January 3, 363,646, issued 2. application opposition. notice of Since republished Act under the Trademark subsequent was filed of 1946 on filing, applicant’s would not estab- judicial prior use that we also take lish goods asks registration. Reg. Septem- notice of named Tropic-Aire mark there opinion a considerable difference fans on controlling deodorizer, nor- as to facts as well on a chemical mally legal products ema- conclusions. cannot com- assume that We *3 * * agree source; pletely *. examiner nate from Moreover, same with either the clear the Assistant

it is Commissioner. a addition of evidence adduced the We believe the evidence shows that opposer’s air chemical deodorizer to “Tropic-Aire” used on ven- has separate moving equipment tilating apparatus which, as- and fans by of such a that, opposer’s brief, stated are items mark, present air,” Tropic- “relate movement of op- expansion of be a would natural Aire, Inc., prior to 1951 when it became- poser’s business.” subsidiary a of McGraw-Edison Com- disagree- Commissioner, The Assistant enjoyed pany, good substantial findings, op- with these dismissed the “Tropic-Aire” the mark field of' position saying: automobile and bus hot water heaters- below the statute.” of confusion within concluded products, pansion of business’ of a manufac- chase of the Comparing the fall turer Room deodorants are not believed to stances and conditions of through the same trade channels un- and air to the same air conditioners also der the utilize tioners, or that manufacturers of tion with window dorants, or that room deodorizers Aire’ on such a nothing Interferences poser [equipment] “In view of the differences in « * * conditions within indicated has used the mark room deodorizers finding. decision conditioning type air conditioners. in the record to same that there ‘ventilating apparatus thej-e js nothing in the respective goods, differences in presupposes surrounding views of the tribunals average purchasers common area by any fans’, but there is similar type is no likelihood support units are sold circumstances foregoing quo- Examiner of ‘normal ex- purview air condi- room deo- purchase. markets, conjunc- ‘Tropic- support a find- it is Mr. Berstead McGraw- that also testified bination. these heaters since 1951. As to one- model of the heaters illustrated in the invoices, Mr. Berstead testified that: used as a fan without a the mark catalog and entered on certain sales “ catalogs illustrating certain models of Tropic-Aire, Inc., identified certain sales Edison the small Vice President of McGraw- Berstead, witnesses, Tropic-Aire, Inc., being transferred to the Clarke Divi- line of April 1951, Tropic-Aire, Inc., obtained' baugh Company sion pany, Tropic-Aire, Inc., acquisition by McGraw-Edison Com- ers, conditioners, duction of bus trailers. is not clear from the record. After- goods prior * * * circulating heater, radiant and convection air-conditioning room as heater extent of the latter “Tropic-Aire” McGraw-Edison Company “Tropic-Aire” In addition appliance air-conditioners, it was a heater and fan com- Mr. having production to room air-conditioners. 1951, “Tropic-Aire” Bonitzer, heat was when of Toledo room heaters of both auto business of and President or it could be used units for buses and testified that labels heating to its discontinued 1951, and Company. of the latter Treasurer of been it could be type. element.”' however,, bus air- wanted,, used Swartz- heat- other- pro- Mr. was- The- the- In of' a Company therefrom it will be then, tations evident that Edison weight opposer’s use little making window air-conditioners seats, heat- of ers, bus bus agenda” to sell “it was air-conditioning buses “Tropic-Aire.” under the name recognized trailers. We have exhibits and company introduced also showing air- on window limited extent of the use ad- that at conditioning appreciate that units. We liquid vertised and sold making factory by it is not may dispersed deodorants, which expand into by electrical hardware would well a small fan unit as air-conditioning. the though strange of chemical central and room manufacture bedfellows *4 undisputed own is the industry; not follow found in but it does registrations er of company cooling heating, heaters, for ventilating air air fans would not sell an air deodorizer. also vehicles, for motor People interested in in force. are still which moving homes would the air in their registrations must be considered These products. prospects be obvious for such Trademark section might first blush it seem that At poser’s 1052(d), Act, notwith 15 U.S.C.A. § sales standing show the evidence that tends to sewing ma- of such items as trademark chines, longer using registrant is no baby carriages, goods enumerated mark on some of the heaters, electric blankets and Corp. Lerner General therein. Shoe plates rather roasters and hot tric Mfg. Inc., Co., 254 F.2d Bros. view, however, that far It is our afield. that CCPA 872. has also shown diversity very he the mark to keep “Tropic-Aire” served to which have combinations; fan and heater that consuming public as a trade- might spray purchasers deodorant though of them are mark even some purchasers small be of a market, make all now on the not dispersing fan unit the deodorant likely purchasers would think that more throughout room; ‘Tropic-Aire’ people” “those had past applied mark to brought they product saw out if another air-conditioners, albeit that use was spray market a transient, president testifying bearing “Tropic- use trademark home again in 1956 room air-conditioners were opinion hold this even if Aire.” We by opposer made “it is on the a common not agenda air-condi conjunction with home deodorizers under such mark.” tioners air-conditioning window units. We feel that chemical deodorants appellee’s application as described oppo- reasons above the For the likely associated in the to be should be sustained and the sition purchasing public air mind the Assistant Commissioner cision of moving treating and as we find the Patents is reversed. marks Reversed. opinion are of the we that those products op- familiar with the varied relating moving MARTIN, (concurring). to air and treat the trademark in which a doubt has This case would, upon “Tropic Air” my mind as to whether the arisen treating products such as when mark of they appellee’s deodorants, conclude to cause confusion would be origin. same source purchasers. mistake deceive That against reaching resolved the new- conclusion we have doubt must be appear comer, certain and for that reason I con- factors discounted by majority. swayed lower result reached tribunals. We in the cur