Waterbury Chemical Co. v. Reed & Carnrick, 41 App. D.C. 256

Waterbury Chemical Co. v. Reed & Carnrick

41 App. D.C. 256 | D.C. Cir. | 1913

Mr. Justice Van Orsdel

delivered the opinion of the Court:

It is somewhat difficult to determine just what degree of similarity between two marks is sufficient to bring them within the inhibition of the law. But in this case, in the absence of any evidence showing actual confusion, we think there is not such a general similarity between the marks as to cause the average purchaser of the goods to confuse one for the other. The Examiner cited, as decisive of this case, certain cases where the following marks were held to be confusing: “Purock” and “Pureoxia,” Ex parte Charles E. Hires Co. 180 Off. Gaz. 879; “Oarbolineum” and “Creo-Carbolin,” Re Barrett Mfg. Co. 167 Off. Gaz. 513; “Autola” and “Au-to-do,” Re Wilcox, 36 App. D. C. 107; and “M'omaja” and “Mojavá,” American Grocery Co. v. Sloan, 68 Fed. 539. We think the marks in issue, where the only similarity consists in the single syllable “zyine,” eome within the ruling in Landespriv v. Hall, 36 App. D. C. 532, where the word “Kalodont” was held not to be likely to be confused with “Sozodont;” and in the' application -of Ex parte The Laxakola Co. 100 Off. Gaz. 451, where it was held that *258■ “Dermacura” was not in conflict with “Dermakola;” and in Hall v. Ingram, 28 App. D. D. 454, where “Sozodont” was held not to be in conflict with “Zodenta.” True, we have the testimony of witnesses on- behalf of appellees to the effect that in their opinion the use of the marks would create confusion, but this is counterbalanced by the witnesses for appellant, who testified to the contrary. .We agree with the statement of the Assistant Commissioner that “such testimony is not of great assistance in determining the question whether there is such ’similarity as to justify a-refusal to register under the statute; the effect of the marks upon the mind of the tribunal having to consider the question must be the controlling factor.” Applying this test, we are impelled to the conclusion that the marks are not so similar as to be likely to create confusion in trade.

;-It appears-in the opinion of the Assistant Commissioner that there is a registered trademark issued upon goods similar to those on which the marks in question are used consisting of the.word “Panzyme.”.- While we are only concerned, with the marks in opposition, it may be suggested that it is still within the power of the Commissioner to-inquire into the similarity .between this.mark and the mark of appellant. The decision of the Commissioner of Patents is reversed, and the clerk is directed to certify these proceedings as by law required. ■

Reversed.