discharge of the system through the ignition gap at the optimum time. Because the triggering capacitor is connected to be charged through the resistor by the same source which charges the main energy storage capacitor, the ratio of the charging time of the two capacitors is constant and independent of any other factors. Appellant discloses independent transformers for the charging of his capacitors. He also uses a resistor, in this case a variable resistor, to aid in controlling the relative charging rates of his two capacitors. However, the variable resistor is capable of controlling the relative charging rates, according to the specification, only "within reasonable limits." Its chief function is to vary the sparking rate of the whole system. Reading the claims in issue in light of both specifications brings to a sharp focus the importance of fixing a definite meaning for the indefinite term "source" which both parties use. Unless the "source" in the count which charges the main energy storage capacitor in appellant's circuit is identical with the "source" (denoted "said source" in the count) charging the triggering capacitor in appellant's circuit, the relative charging rates of the two capacitors cannot be determined by the resistor alone. Appellant's "source" as disclosed comprises one circuit branch consisting of a transformer and two rectifiers to charge his main energy storage capacitor, and another branch consisting of another transformer and rectifier to charge the triggering capacitor. Thus appellant does not rely upon the resistor, alone, to control the relative charging rates of his two capacitors, but utilizes, mainly, the two specially constructed critically tuned transformers operating near their saturation levels. Thus it is evident that the source in appellant's circuit as disclosed in his specification is materially different from the "source" required by the count and disclosed by appellee as above described. We find, therefore, that appellant's disclosure does not support the count, and affirm the decision of the Board of Patent Interferences. 47 CCPA 890; 756 O.G. 283; 277 F. 2d 177; 125 USPQ 402 BLACK PANTHER COMPANY, INC. v. COOK CHEMICAL COMPANY (No. 6537) TRADEMARKS 1. REGISTRATION-EFFECT-REGISTRATION-RENEWAL-TITLE-IN GENERAL Registered mark owned by partnership was assigned to third party by instrument executed on behalf of partnership by the succeeding partner; third party assigned mark to opposer; both assignments were recorded in Pat ent Office; thereafter, registration was renewed by opposer; prima facie, therefore, papers show title to registration and ownership of mark to be in opposer. 2. REGISTRATION-EFFECT-TITLE-IN GENERAL It is incorrect to hold that trademark owned by copartnership does not pass to surviving partner by operation of law; in absence of evidence that he was acting outside his authority in assigning registered mark owned by partnership, partner should be regarded as having been qualified to act for partnership; even assuming that other partner was not dead when assignment was executed, partner was entitled to act for partnership; it was not necessary that partner show use of mark as an individual since, in absence of contrary evidence, it is presumed that registered mark is being used by registrant. 3. ABANDONMENT-NON USE AS ABANDONMENT Registrant assigned mark to third party, who assigned mark to opposer; while third party does not appear to have used mark, he transferred it to opposer one month after he acquired it; no presumption of abandonment can be based on nonuse during that short period; opposer began using mark on charcoal in spring of 1957, which is early enough to avoid presumption that it abandoned mark after acquiring it in August 1956, especially since not much business was done by opposer with charcoal during fall and winter months. 4. IDENTITY AND SIMILARITY-WORDS-SIMILAR "E-Z Lite" is confusingly similar to "EZ-Fire." United States Court of Customs and Patent Appeals, April 6, 1960 APPEAL from Patent Office, Opposition No. 37,332 [Reversed.] John Howard Joynt for appellant. Beale & Jones, George R. Jones, Hovey, Schmidt, Johnson & Hovey, Robert D. Hovey, for appellee. [Oral argument March 3, 1960, by Mr. Joynt; submitted on record by appellee] Before WORLEY, Chief Judge, and RICH, MARTIN, and SMITH, Associate Judges WORLEY, Chief Judge, delivered the opinion of the court: This appeal is from the decision of the Trademark Trial and Appeal Board of the United States Patent Office dismissing an opposition by appellant to appellee's application, No. 6,592, filed April 18, 1956, for registration of "E-Z Lite” as a trademark for a liquid chemical composition for use in starting fires. The opposition was based on appellant's alleged prior use of "E-Z Lite" for charcoal, and alleged ownership of Trademark Registration No. 353,606, granted January 11, 1938, for "EZ-Fire" as a trademark for kindling blocks, to the EZ-Fire Company of Ludewici, Georgia. In dismissing the opposition, the board held (1) that appellant had not established use of the "E-Z Lite" trademark prior to the filing date of appellee's application, and (2) had not proved ownership of the "EZ-Fire" registration. Appellant's claim of ownership of the "EZ-Fire" registration represents a ground of opposition entirely distinct from its activities in connection with "E-Z Lite." If the record supports the former claim, it is immaterial whether the latter constitutes a valid ground of opposition. Accordingly, we shall dispose of the issue as to the "EZ-Fire" registration first. [1] With respect to the second ground, appellant introduced in evidence copies of two assignments of Registration No. 353,606, together with the good will of the business. The first names one Charles M. McBryde as assignee, and was executed on behalf of the EZ-Fire Company July 3, 1956,1 by one Harold C. Long as "succeeding partner." It contains a notation that the other partner, one Gibbs E. Smith, was deceased. The second assignment, executed August 3, 1956, by Charles M. McBryde, names Black Panther Company, Inc., appellant here, as assignee. Both assignments were recorded in the Patent Office on August 7, 1956. It is stated in the board's decision that the registration was renewed by appellant on January 11, 1958. Prima facie, therefore, the papers show title to the registration and ownership of the registered mark to be in appellant. Rosengart, Etc. v. Ostrex Company, Inc., 30 CCPA 1046, 136 F. 2d 249, 57 USPQ 543. [27] The board held the assignment to McBryde ineffective because "a trademark owned by a copartnership does not pass to the survivor by operation of law; and the record is devoid of any evidence which might tend to show either that Long had succeeded to EZ-Fire and its registration, or had made any use of the mark as an individual. No authority is cited for the first part of that statement. It appears to be incorrect. As stated in Corpus Juris Secundum, Volume 68, pp. 766, 767: However it is generally held that the survivor does become the legal owner of the assets of the firm or of its personal property, including its choses in action, for the purpose of adjusting or liquidation of the partnership affairs and it has been held that in the eyes of the law his ownership is absolute, although it may be somewhat qualified in equity, or the title may be considered but an equitable one. See also Abraham & Straus, Inc. v. Truval Manufacturers, Inc., 31 CCPA 731, 138 F. 2d 77, 59 USPQ 162; Slater, et al. v. Slater, et al., 67 N.E. 224; Cook v. Cochran, 156 S.E. 465 (Ga.); and Richter v. Richter, 43 S.E. 2d 635 (Ga.). In the absence of any evidence that he was acting outside his authority, we are of the opinion Long should be regarded as having been qualified to act for EZ-Fire Company. Even assuming, as seems to be suggested by the board, that the partner Smith was not dead The date of this assignment is incorrectly given in the board's decision as July 31, 1950. when the assignment was executed, it appears that Long would have been entitled to act for the company under the law of partnership. See 68 CJS, p. 572. It was not necessary that Long should show use of the mark as an individual since, in the absence of evidence to the contrary, it is presumed that a registered mark is being used by the registrant. American Throwing Co., Inc. v. Famous Bathrobe Co., Inc., 45 CCPA 737, 250 F. 2d 377, 116 USPQ 156, and cases there cited. In our view Long was entitled to act for the registrant, EZ-Fire Company. [3] While McBryde does not appear to have used the mark, he transferred it to appellant one month after he acquired it. No presumption of abandonment can be based on nonuse during that short period. As shown by the record, appellant began using the mark on charcoal lumps and briquets in the spring of 1957, which is early enough to avoid any presumption that it abandoned the mark after acquiring it on August 3, 1956, especially in view of the fact that the record indicates that not much business was done by appellant with charcoal during the fall and winter months. The record also reflects that appellant's charcoal lumps are used in many instances in kindling fires; accordingly, they may be considered as coming within the term "kindling blocks" used in Registration No. 353,606. In our opinion the record sufficiently establishes appellant's ownership of Registration No. 353,606, which long antedates appellee's application here involved. The board indicated, in a footnote to its decision, that the [4] "E-Z Lite" and "EZ-Fire" marks are confusingly similar and we are in accord with that view. Both the registration and appellee's application relate to materials for kindling fires, and the marks as applied to such goods contain the identical suggestion that the fire will light easily. In view of this identity in meaning and of the similarity in sound and appearance of the marks we think their concurrent use on the goods of the respective parties would be likely to cause or create confusion, within the meaning of the Lanham Act. It follows that the opposition should have been sustained on the basis of appellant's Registration No. 353,606, and it is therefore unnecessary to consider opposer's alleged prior use of the "E-Z Lite" mark. The decision of the Trademark Trial and Appeal Board is reversed. 47 CCPA 232; 756 O.G. 809; 277 F. 2d 171; 125 USPQ 404 Decided April 6, 1960 ESSO STANDARD OIL COMPANY v. E. F. DREW & Co., Inc. (No. 6538) TRADEMARKS 1. APPLICATIONS TO REGISTER-AMENDMENT-CLASS OF GOODS-IN APPLICATIONS TO REGISTER-APPEALS TO COURT-ISSUES DETERMINED TRADEMARK CASES Applicant's evidence indicates that it applies mark only to specific composition used in laundering, and applicant has requested leave to amend application to so limit goods, but application is not now so limited; therefore, court must consider it as embracing water softeners generally, that being the present designation of goods to which mark is applied. 2. IDENTITY AND SIMILARITY-HOW DETERMINED- —APPEARANCE, MEANING OR SOUND IDENTITY AND SIMILARITY-HOW DETERMINED PURCHASERS AND SELLING METHODS-IDENTITY AND SIMILARITY-Words-NOT SIMILAR "Acto-Vate" for water softener sold exclusively to laundries is not likely to be confused with "Acto" for petroleum sulphonates sold in larger quantities to manufacturers for use as ingredients of water softeners; it is conceivable that same purchaser might buy both "Acto" sulphonate and "Acto-Vate" water softener, but that would not be expected to occur in many instances; such a purchaser probably would be discriminating since he would be buying specialized products in technical field and, at least in case of “Acto" sulphonate, probably would be buying in comparatively large volumes; moreover, "Acto" is not purely arbitrary but is suggestive of action or activation. 3. OPPOSITION-PLEADING AND PRACTICE Applicant's president was abroad when opposer demanded of applicant that he be produced to testify; applicant offered to consent to postponement of completion of opposer's testimony until president returned if advised as to nature of testimony expected, and if such testimony appeared proper and necessary; apparently, opposer did not seek postponement; such circumstances are not grounds for refusing registration of applicant's mark. United States Court of Customs and Patent Appeals, April 6, 1960 APPEAL from Patent Office, Opposition No. 37,112 [Affirmed.] Mead, Browne, Schuyler & Beveridge, William E. Schuyler, Jr., Andrew B. Beveridge (Francis C. Browne of counsel) for appellant. Bierman and Bierman, Harry C. Bierman (Jordan B. Bierman of counsel) for appellee. [Oral argument March 3, 1960, by Mr. Browne and Mr. Jordan B. Bierman] Before WORLEY, Chief Judge, and RICH, MARTIN, and SMITH, Associate Judges WORLEY, Chief Judge, delivered the opinion of the Court: This appeal is from the decision of the Trademark Trial and Appeal Board of the United States Patent Office, dismissing an opposition by appellant to appellee's application for registration of "Acto-Vate" as a trademark for water softeners. The opposition was based on a |