SUBJECT MATTER-Continued.
Trade-marks-Continued.
Green Circle or Disk. Mishawaka Rubber & Woolen Mfg. Co. v. Bradstone
Rubber Co., 888.
Hy-Up, 7-Up. Burstein v. The Seven Up Company, 1202.
King Elefant, Head of Elephant. Joseph Tetley & Co. v. Fant Milling
Co., 1180.
Lustrlux, Lux. Lever Brothers Co. v. Butler Mfg. Co., 1215.
Maryland Rose, Four Roses. Frankfort Distilleries, Inc., v. Kasko Dis-
tilleries Products Co., 1189.
Maryland Rose, Melrose. Kasko Distillers Product Corp. v. Records &
Goldsborough, Inc., 991.
O'Kee Do Kee, O-Ke-Doke. Kraft-Phenix Cheese Corp. v. Consolidated
Beverages, Ltd., 803.
Pla-Zure Tred, Pleasure Tread. The Longini Shoe Mfg. Co. v. Ratcliff,
784.
Red Horse, Silhouette of Rearing Horse. D. J. Bielzoff Product Co. v.
White Horse Distillers, Ltd., 722.
Representation of Indian Head. United States Gypsum Co. v. The Ameri-
can Gypsum Co., 907.
Retail Clerks Union, Five-Point Star. In re Retail Clerks International
Protective Assoc., 875.
Sit-Ru-Lux, Lux. Lever Bros. v. Sitroux Co., 858.
So-White, Oakite. Oakite Products, Inc., v. H. Kirk White Co., 712.
Synchromatic, Oil-O-Matic. Synchromatic Air Conditioning Corp. v.
Williams Oil-O-Matic Heating Co., 1010.
Tempryte. Albert P. DeSanno, Jr., et al., v. Lieb, 728.
Tric-O-Lastic. In re Maiden Form Brassiere Co., 1124.
2-Life, Nulife. Auburn Rubber Corp. v. Hanover Rubber Company, 743.
White House. White House Milk Products Co. v. Dwinell-Wright Co.,
1194.
TRADE MARKS, CANCELLATION.
Motion to strike evidence.
180. The Commissioner of Patents was right in overruling appellant's
motion to strike the evidence introduced by appellees, at least so far
as it relates to the use by the appellees of the involved trade-marks
on its goods to the date of certain assignments of its right, title,
and interest in and to its trade-marks. Tetley & Co. v. Fant Milling
Co., 1180.
181. In the instant case it is established that deSanno, Jr., having
transferred all his assets to the corporation, A. P. DeSanno & Son., Inc.,
was not, at the time of filing his petition for cancellation, exercising
any right whatever with respect to the mark sought to be cancelled.
Therefore, it is clear that upon the record before the court the peti-
tion for cancellation should be dismissed. Desanno, Jr., et al., v. Joseph
A. Lieb, 728.
Priority of adoption and use.
182. Appellee was entitled to the exclusive use of its registered
trade-mark years before the application of appellant was filed, and was
and is entitled to the use of its trade-mark against the use of the
same trade-mark by others on goods of the same descriptive properties.
White House Milk Products Co. v. Dwinell-Wright Co., 1194.
Similarity of goods.
183. The goods covered by the involved registrations and the goods
to which appellee applies its mark are unquestionably of the same
descriptive properties within the meaning of the trade-mark act.
Concurrent use of said trade-marks upon the goods claimed would
result in confusion in trade. Raffaele Martorelli v. The Atlantic
Macaroni Company, 1171.
184. Taking into consideration the differences in the marks of the
parties, the goods on which their marks are used, and the people
TRADE MARKS, CANCELLATION-Continued.
Similarity of goods-Continued.
to whom such goods are sold, the registration of appellees' "King
Elefant" and "King Elephant Special" marks will not be likely to cause
confusion or mistake in the mind of the public. Appellees are entitled
to have each of their marks registered. Tetley & Co. v. Fant Milling
Co., 1180.
185. Considering the differences in the goods of the respective parties,
together with the differences in the involved trade marks, it appears
that the marks are not confusingly similar and that appellees' pred-
ecessor was entitled to the use of its mark on the date of its appli-
cation for registration thereof. Tetley & Co. v. Fant Milling Co., 1180.
186. Since the goods herein are of the same descriptive properties and
the marks of the parties practically identical, likelihood of confusion
of origin in the mind of the public is probable. Practice or rulings in
the Patent Office in former years cannot create in an applicant for
registration of trade-mark a conclusive vested right. However, it is a
prima facie valid mark. White House Milk Products Co. v. Dwinell-
Wright, 1194.
187. Boots, shoes, and slippers, and articles of jewelry are not goods
possessing the same descriptive properties. General Shoe Corp. v. Forst
Ner Chain Corp., 1398.
188. "2-LIFE" and "NU-LIFE" are confusingly similar when used on
the same goods and there was no error in sustaining appellee's petition
for cancellation. Auburn Rubber Corp. v. Hanover Rubber Co., 743.
189. Appellant's use of its mark will not distinguish its goods from
those of petitioner and if the two marks are concurrently used on iden-
tical goods there is, in a statutory sense, a likelihood of confusion.
Norris, Inc., v. Charms Co., 1174.
190. The rule relative to presumptions arising from the failure to pro-
duce the most satisfactory evidence, is here applicable. In the present
case there is the presumption that had the documentary evidence to
which reference was made on cross-examination of a witness for the
appellant been produced, it would have been detrimental to appellant's
case. The Longini Shoe Mfg. Co. v. Raymond R. Ratcliff, 784.
TRADE MARKS, OPPOSITION.
191. There appears to be no authority for holding that appellee, by
filing an answer and entering into a stipulation of facts, thereby lost its
right to renew its motion to dismiss the opposition at final hearing be-
fore the Examiner of Interferences. Mishawaka Rubber & Woolen Mfg.
Co. v. Bradstone Rubber Co., 888.
192. There was no error in the decision upon the merits of the oppo-
sition, nor in the refusal of the motion to reopen the cases for the pur-
poses of taking testimony. La Compagnie Fermiere de L'Etablissement
Thermal de Vichy, Société Anonyme v. Celestin, Limited, 1241.
193. Appellant's notice of opposition is fatally defective in failing to
allege grounds of opposition as the statute requires. Mishawaka Rub-
ber & Woolen Mfg. Co. v. Bradstone Rubber Co., 888.
Priority of adoption and use.
194. Under the circumstances of the case at bar the testimony on
behalf of the opposer is sufficient to warrant a holding that the opposer
has proved priority of adoption and use in the instant proceeding.
Merrell v. The Anacin Co., 847.
195. There is nothing in the record which is inconsistent with the con-
clusion that opposer had used the trade-marks continuously upon the par-
ticular goods in controversy since March 31, 1930, which is prior to any
date claimed by the applicant. Merrell v. The Anacin Co., 847.
TRADE MARKS, OPPOSITION-Continued.
Priority of adoption and use-Continued.
196. The evidence of record fails to warrant the conclusion that, in the
adoption and use of its trade-mark in issue, appellee was motivated by
the desire to trade upon the good will established by appellant. Miles
Laboratories, Inc. v. United Drug Co., 1273.
197. The goods as described in appellee's application and the goods of
appellant possess the same descriptive properties, and since the words
"CERTO" and "CERTORA" are obviously quite similar, the opposition
of appellant should have been sustained. General Foods Corp. v. Casein
Company of America, 797.
198. On the record presented, the goods of the respective parties are not
of the same class, and do not possess the same descriptive properties.
Kraft-Phenix Cheese Corp. v. Consolidated Beverages, Ltd., 803.
199. Appellee's dry-cleaning apparatus and appellant's soap are goods
which do not possess the same descriptive properties, and appellee is
accordingly entitled to have its mark registered. Lever Bros. Co. v. Butler
Mfg. Co., 1215.
200. Brandy and mineral water are not goods of the same descriptive
properties. La Compagnie Fermiere de L'Etablissement Thermal de
Vichy, Société Anonyme v. Celestin, Limited, 1241.
201. In the instant case there appears to be no physical resemblance
between the contesting marks, each considered as a whole, nor is there
any resemblance in the per se meaning of the terms. No ground is found
for believing that any confusion in pronunciation might reasonably be
anticipated. Oakite Products, Inc., v. H. Kirk White & Co., 712.
202. The tribunals of the Patent Office did not err in holding that
the concurrent use of the marks of the parties herein on their respective
goods would be likely to cause confusion in the trade and to deceive
purchasers. D. J. Bielzoff Product Co. v. White Horse Distillers, Ltd., 722.
203. The terms "Anacin" and "Alycin" are so alike in every particular
as to call for no analysis. The goods are quite similar. Both are used to
accomplish substantially the same purpose, both are medicinal prepara-
tions, and are goods of the same descriptive properties within the meaning
of the statute. Merrell v. The Anacin Co., 847.
204. Appellant neither pleaded nor proved trade-mark use of any design
showing a blue stripe. Whatever may have been the purpose of the use
of the blue stripe, it is in an arrangement which is so entirely different
from the arrangement and appearance of the mark sought to be registered,
observing the latter as a whole, that there is no reasonable probability
of confusion. United States Gypsum Co. v. The American Gypsum Co.,
907.
205. The marks of the parties do not look alike, sound alike, or con-
vey anything of identity in meaning. Therefore, their concurrent use
on whiskey would not be likely to cause confusion in a statutory sense.
Kasko Distillers Products Corp. v. Records & Goldsborough, Inc., 991.
206. In this case the goods of the parties are substantially identical,
but they are relatively expensive and undoubtedly their purchase would
be made only after a careful comparative investigation of different
apparatus for air-conditioning systems. These facts together with the
dissimilarity of the marks impels the conclusion that the marks are
not confusingly similar. Syncromatic Air Conditioning Corp. v. Wil-
liams Oil-O-Matic Heating Corp., 1010.
207. Upon the record presented appellee is the owner of the regis-
tered marks. Registration of any mark which would conflict therewith
must be denied as long as appellee's registrations stand. Confusion
would result if the mark of either applicant were used concurrently
with opposer's mark. Georg Jensen & Wendel v. Georg Jensen Hand-
made Silver, Inc., Georg Jensens Solvsmedie v. Geory Jensen Hand-
made Silver, Inc., 1109.
208. There is a grave doubt that the concurrent use of the marks of
the parties on the goods involved, considering the marks as a whole,
will avoid the likelihood of confusion. This doubt must be resolved
against the newcomer. Illinois Watch Case Co. v. Shutton, Inc., 1109.
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