*1 trade MILLS, Inc. of Patents issue missioner a FRITO CO. GENERAL 1071, registration. 14120. 1119, . U.S.C. U.S.C.A. § United States States application to the United 63.§ Fifth Circuit. Office, register sought Patent 30, 1953. March “Chee.tos,” which trade-mark 13, 1053. May Rehearing Denied puffed-corn cheese-coated name of its Appellee product. U.S.C.A. § in ac opposition registration to the filed its provisions of section with the cordance U.S.C.A., contending that 1063, 15, Title and liable “Chee.Tos” was trade-mark its own cause confusion with aof name being the latter as product sold puffed-oat generally cereal, name and also breakfast The Examiner product. known cracker less sustained Trade-Mark Interference and on opposition registration; to the denied of Patents peal, the Commissioner there ground registration oh two that was similarity between was a The district confusion. the Commis- decision of affirmed appealed under applicant sioner, and the 15, U.S.C.A. Title Section adopted by the “Chee.tos” was The word that date Company Frito product packages of thirty-six million its thirty- been sold in name have bearing that states, amounting to over said sales eight The million dollars. eight ap- by the a trade-mark registered being sold pellee product states, amounting to sales forty-eight ap- dollars. million than sixteen more ex- sold pellant’s product “Chee.tos” was item; evi- and there-is clusively as a snack times- appellee’s product at- dence that as a snack. also eaten U.S.C.A., Title Section Kelsoe, Jr., H. Johannes, G. L. J. by which the provides that no trade-mark Kelsoe, Dallas, Tex., ap- for

Johannes distinguished be goods of pellant. be shall refused goods of others from the Groen, Ill., Chicago, Gerrit P. Webster on ac- principal register, Dallas, Tex., Atwell, Anthony Juettner, A. nature, of or unless consists count of Minneapolis, Minn., appellee. for so resembles comprises which a mark HOLMES, BORAH, office, patent RUS- Before in the registered SELL, Judges. previously Circuit used trade name mark or another in the HOLMES, Judge. abandoned, likely, when as to be goods of appellant instituted this action mistake or directing an order the Com- to secure

937 This, substance, purchasers. deceive Development Corporation Standard Oil v. part applicable by Marzall, U.S.App.D.C. 205, is the of the statute which 90 195 F.2d 44. bounden, the Commissioner and it is the was Affirmed. the same statute that controlled district testimony by court. No was offered either Judge (dissenting). complained purchaser any usually side that had that are what denominated Section goods the 4915 gotten by 1071; him the 15 goods proceedings, were not U.S.C.A. 35 § thought that getting. present, he he was The trial such as the while the , thought products determination court that each of these of the Commissioner of good, Patents satisfying and to the customer. should be weight by accorded the “Chee.tos,” Courts, It that judicial power also found still the the must be ex- upon chosen by by had ercised been used the consideration of the case many years, presented it for but entirety. the court was unable pro- The statute say by and did find that vides aggrieved party to not such use remedy of a plaintiff likely judicial to proceeding was not cause confusion question in which the Therefore, to both origin and involved use. is to be considered de novo. thought go that the decree should for the for registration mark, of defendant. complainant appellate here, below and is any entitled finding This without to proposed leaves us unless its part likely, trademark of the district court that the chal is when to its lenged goods, the trade to cause mistakes, trade-mark resembled confusion and or purchasers. con to deceive likely or was to cause The statute aims customers; deny registration if there is fusion or mistake to deceive a reasonable likelihood of confusion. The Commissioner of Patents found that statement of but products respective trial parties herein that “I’m of the were unable to related, say plaintiff closely by and that such use pro- so the marks so [of posed appearance, likely in sound and that there was not Chee.tos] find, clearly confusion” not likelihood of confusion or mistake does affirma- tively, a purchasers. reasonable minds of the the district likelihood of confusion. Since It, therefore, say be said unable that the use of the are with- that we likely precise by benefit of finding trade name “Chee.tos” was to out the trial confusion; and essential cause we are likewise fact. But if since likely negatives say two can be said unable to that is not constitute confusion; affirmative, I clearly think it and the Commissioner of erroneous. It seems clear me granting Patents found that the that when marks compared plicant’s likely to cause con “Chee.tos” trade-mark was and are for similarity we the and tested and likelihood fusion or mistake: conclude that of the difference in nature action of the Commissioner was un of supported evidence, sound, product, spelling, and not character of the substantial mark, clearly especially controllingly, erroneous. McKinnon & Co. v. their Inc., HyVis Oils, C.C.P.A., contrasting different and 88 F.2d 24 connotations is 1105; unsupportable Patents, Sears, render such as to a finding Roebuck Co. v. 395; Talge, Cir., 8 140 the use of “Chee.tos” would F.2d Dwinell Co., with Wright cause confusion “Cheerios.” Mani- Co. National Product v. Fruit festly, Cir., both are intended 623; Corp. convey 1 140 F.2d Celanese v. purchasers Co., prospective entirely De definite E. I. Du Pont Nemours & 154 F.2d one, C.C.P.A., Patents, 948; suggestions. 146, 148, different sug- 33 W. B. cheese, Kalich, of if Roddenbery gestion even not cheese 158 F.2d 34 Co. other, 745; C.C.P.A., suggestion Patents, toast. The McKesson & Rob cheer thought Mfg. with the added Co., cheery v. First Chemical bins Texas 877; C.C.P.A., greeting, dictionary1 Patents, 2d Safe F. terms —-what Dunnell, Cir., 649; chiefly way F.2d “used friendly Stores v. “cheerio” as as a Dictionary, Edition, (Unabridged). New International Second Webster’s leave-taking.” The idea of greeting or is so greeting

brightness enlivenment *3 mispro- that even implicit in “Cheerios” dissipate If Chee.- it. nunciation could suggestive, considered tos should be view- neither coined word. at least a upon “Cheerios.” impinge does it dissent; respectfully I denied; Rehearing dissenting. Judge, CORP. PARTS HERCULES SERVICE STATES. v. UNITED Circuit. Sixth April 2, 1953.