of the same metal as that of the bearing is operative under the circumstances recited in the application. Appellants' lubricant, the examiner said, is intended for automobile engine lubrication and would necessarily come in contact with a plurality of bearings, such as steel, bronze, aluminum, and babbitt, and that if "an iron soap is used it will not bear the defined relationship to aluminum", and vice versa. The examiner pointed out that the claims are not restricted to the lubrication of a single metal bearing. Appellants make the contention that the record discloses that the examiner, after having rejected the claims, using the British patent as the principal reference, and after having considered an affidavit submitted by appellants, withdrew the British patent as a reference "in view of a recently issued patent", to wit, the Colbeth patent, and that the board failed to take cognizance of this fact. However, in the statement of the examiner subsequently made to the board, the British patent is cited and its pertinency commented on by the examiner. So, we think this contention of appellants is not meritorious. Appellants further contend that there is no disclosure in the Colbeth or British patents of the use of branched-chain alcohols or of mixed esters of the total fatty acids of natural oils and such alcohols. However, as pointed out by the examiner and by the Solicitor for the Patent Office, Colbeth states that his esters may be isopropyl, isobutyl, isoamyl, and others, which would ordinarily indicate the use of isopropyl, isobutyl and isoamyl alcohols in making the esters. All these are branched-chain aliphatic alcohols and have less than 12 carbon atoms. Appellants themselves, in their specification, suggest using isopropyl, isobutyl, isoamyl and other secondary and tertiary alcohols in making their esters. Colbeth, furthermore, is one of the examples recited in his specification, states that equal volumes of coconut oil and one of the alcohols of the group he suggests using are mixed together, and esterification is caused to take place in the well-known way. Obviously, the resulting esters would include the total fatty acids of coconut oil-the same oil which appellants use. For the reasons before stated, the decision of the Board of Appeals is affirmed. 573 O. G. 363; 32 C. C. P. A. 771; 146 F. (2d) 510; 64 USPQ 233 IN RE THE AMERICAN FORK & HOE COMPANY (No. 4924) 1. TRADE MARKS-REGISTRATION-IN GENERAL Regardless of whether name trade marks carry with them restricted appropriation right, it does not change mandate of statute that Commissioner shall deny registration to confusingly similar mark applied to goods of same descriptive properties. 2. EVIDENCE OF CONFUSION-INDENTITY AND SIMILARITY-HOW DETERMINED It is not explained why applicant chose "Collie King" as mark, but it is significant that "King", most important trade mark feature of registered marks, should be prefixed by "Collie", in view of fact that registered marks are owned by Collins Company. 3. IDENTITY AND SIMILARITY-HOW DETERMINED-IN GENERAL Difference in meaning of marks is not controlling, although it should not be ignored, especially when marks have such similarity as to produce confusion. 4. IDENTITY AND SIMILARITY-WORDS-HOW DETERMINED IN GENERAL "Collie King" in printed capitals is confusingly similar to "R. King", with or without "King's Superior Tools", in script; appearance and sound are controlling; marks differ in appearance, but term in commerce which would ordinarily be applied to axes on which marks are used would be "King ax", "Collie King ax", or "R. King ax"; "King" in both instances sounds alike and marks resemble each other. United States Court of Customs and Patent Appeals, December 11, 1944 APPEALS from Patent Office, Serial No. 433,205 [Affirmed] Frank Slough (Donald A. Gardiner of counsel) for appellant. W. W. Cochran (R. F. Whitehead of counsel) for the Commissioner of Patents. [Oral argument November 2, 1944, by Mr. Slough and Mr. Whitehead] Before GARRETT, Presiding Judge, and BLAND, HATFIELD, JACKSON, and O'CONNELL, Associate Judges BLAND, Judge, delivered the opinion of the court: Appellant has here appealed from the decision of the Commissioner of Patents, 57 USPQ 192, affirming that of the Examiner of Trade-marks, denying registration of appellant's trade-mark, which consists of the words "COLLIE KING", for uses on "Hand Tools, namely Hammers, Hatchets, Axes, Adzes, Broadaxes". The application states that appellant and its predecessors had used said mark since January 22, 1912. The Examiner of Trade-marks refused registration in view of the prior registration to The Collins Company of three trade-marks. The first consists of the words "R. KING" in handwriting-a facsimile signature. The second consists of the following words: "King's Superior Tools, Manufactured From Best Refined Cast Steel, R. King, Canton Conn.", the words "R. King" again being in the same script. The third mark comprises the same words "R. King” in script and, immediately below, the words "Canton Conn." The last-mentioned mark was registered September 3, 1912, while the first and second marks were registered in 1921 and 1926, respectively. All three registrations were made under the so-called ten-year proviso in § 5 (b) of the Trade-mark Act of February 20, 1905, which pro vides that a mark which might be otherwise unregistrable under the terms of said Act would be entitled to registration if used for ten years prior to the passage of the Act. The three registrations of The Collins Company disclose that one of the marks had been used since 1826 and the other two since 1830. The Examiner of Trade-marks stated that the registrations under the ten-year proviso gave the name "King" in the registered marks a wholly arbitrary significance; that appellant had merely prefixed the word "Collie" to the word "King"; and that there was not a "registrable distinction" between the two marks, citing cases as follows: E-Z Mills, Inc. v. Martin Brothers Company, 25 C. C. P. A. (Patents) 992, 95 F. (2d) 269, 37 USPQ 199, holding similar "Kladezee" and "E-Z"; Federal Mill & Elevator Co., Inc., v. Pillsbury Flour Mills Co., 18 C. C. P. A. (Patents) 1353, 49 F. (2d) 1042, 9 US PQ 349, holding similar "Lucky" and "Lucky Strike"; King Kola Mfg. Co. v. Coca-Cola Co., 26 C. C. P. A. (Patents) 704, 99 F. (2d) 983, 39 USPQ450, holding similar "King Kola" and "Coca-Cola"; and Lever Brothers Co. v. The Sitroux Co., 27 C. C. P. A. (Patents) 858, 109 F. (2d) 445, 44 USPQ 357, holding similar "Lux" and "SitRu-Lux" The commissioner approved of the action on the part of the examiner and stated: "King" and "King's" as employed in these registrations are, of course, surnames, while applicant's mark as a whole has no such significance. However, "significance of marks is not the only factor to be considered, for appearance and sound are equally important." Kroger Grocery & Baking Co. v. Blue Earth Canning Co., 24 C. C. P. A. 1098, 88 Fed. (2d) 725. The word "King" is a prominent feature of applicant's mark, and in view of the identity of the merchandise involved renders the mark as a whole too nearly similar to each of the registered marks to be used in trade without likelihood of confusion. Applicant claims to have used this mark for many years, and asserts that no confusion has occurred. But the statute prohibits the registration of marks that are "likely to cause confusion or mistake in the mind of the public or to deceive purchasers," and the absence of actual confusion is not controlling. While I think the examiner correctly decided the case, there are two other reasons, to which he has made no reference, why the application as presented must be rejected. One is that the labels filed to "show the trade-mark as actually used upon the goods" indicate that the mark is used by The American Axe & Tool Co., Inc., rather than by applicant. The other is that the mark borne by these labels differs in several respects from the mark shown on the drawing. It is our view that the commissioner reached the right conclusion and correctly stated the law. In view of our conclusion that the application for registration was properly denied by reason of the fact that some of the goods of the parties are identical, to wit, axes, and that the trade-marks are so similar that in their concurrent use there would be a likelihood of confusing the purchasing public as to ownership and origin of the goods, it will not be necessary to pass upon the two addi tional reasons (relating to the character of labels filed with the application) which the commissioner gave for not allowing registration. In this court appellant argues, in effect, that its mark "COLLIE KING" suggests the idea of a certain breed of dog, while the marks of the registrant are almost exclusively concerned with the name of an individual; that trade-marks such as those of the registrant should be "subject to a much more restricted appropriation than had the marks been purely fictitious in character and original in concept," citing Wm. A. Rogers, Ltd. v. International Silver Co., 30 App. D. C. 97, and Thaddeus Davids Company v. Davids Manufacturing Company, 233 U. S. 461. [1] On this phase of the case, it is sufficient to say that regardless of whether name trade-marks carry with them a restricted appropriation right, it does not change the mandate of the statute that it shall be the duty of the Commissioner of Patents to deny registration to applicants whose marks "so nearly resemble a registered or known trademark owned and in use by another and appropriated to merchandise of the same descriptive properties as to be likely to cause confusion or mistake in the mind of the public or to deceive purchasers." [2] It is a queer coincidence, not explained in the record or briefs, just why appellant and its predecessors in business should have chosen as a trade-mark for axes, the term "COLLIE KING." It is significant that "King"-the most important trade-mark feature of the registered marks should be prefixed by the word "Collie," in view of the fact that the three registered marks are owned by the very old corporation, The Collins Company. Appellant argues further that since there is such a difference in meaning between the marks involved here and a lack of similarity in the appearance, there would be no probability of confusion resulting from the concurrent use of the marks; that "In Applicant's case, only an extremely careful analysis of its mark and of Registrant's marks could disclose a similarity. Its difference is at once apparent. Any similarity must be sought out and detected." [Italics quoted.] [3] The difference in meaning of competing marks, under circumstances like those at bar, is not the controlling factor. It is a consideration which should not be ignored, but even though there is a difference of meaning, this fact is not controlling if, in other respects, the marks have such similarity as to produce the result which Congress intended to avoid. Kroger Grocery & Baking Co. v. Blue Earth Canning Co., 24 C. C. P. A. (Patents) 1098, 88 F. (2d) 725, 33 USPQ 137. In that case it was stated that the significance of marks is not the only factor to be considered, and that appearance and sound are equally important. [4] The appearance and sound in this instance are controlling factors. While there is a difference in appearance between applicant's mark and the registered marks, the term in commerce which would ordinarily be applied to the axes upon which the marks of the respective parties are used would be a "King ax," a "Collie King ax," or an "R. King ax." The term "King in both instances sounds alike; and the marks resemble each other, although the words of the applicant are in printed capitals, while those of the registrant are in script. For the reasons stated we conclude that the commissioner properly affirmed the action of the examiner in denying registration of appellant's mark, and his decision so doing is affirmed. 572 O. G. 187; 32 C. C. P. A. 775; 146 F. (2d) 653; 64 USPQ 182 KEYES v. SLAYTER ET AL. (No. 4925) 1. PATENTS-APPEAL. Board of Interference Examiners' statement as to showing in prior patents is not challenged by appellant and he did not make patents part of record, so Court must accept statement as correct. 2. PATENTABILITY-INVENTION-SPECIFICATION-SUFFICIENCY OF DISCLOSURE-IN GENERAL-WORDS AND PHRASES "May" is used in application with reference to inner layer in connection only with alternative method of applying layer; specification states that conductor "is" surrounded with layer of intermatted fibrous glass; "may" is not indefinite disclosure relating to use of glass fibers of staple type in forming inner layer, so as to make applicable doctrine of such cases as Brand v. Thomas, 37 USPQ 505; since applicant discloses two ways of accomplishing purpose, later applicant is not entitled to patent on one of ways of doing thing disclosed. 3. INTERFERENCE-INTERFERENCE IN FACT-SPECIFICATION-SUFFICIENCY OF DIS CLOSURE While disclosure is not so clear as it might have been, it is clear enough to support counts; test applied is that disclosure would have been sufficient to justify allowance of counts as claims in patent issued thereon. United States Court of Customs and Patent Appeals, December 11, [Affirmed.] 1944 APPEAL from Patent Office, Interference No. 80,119 Otto H. Eschholz (James K. Ely, Ezra W. Savage, and Jo. Baily Brown of counsel) for appellant. Carl G. Staelin (Clarence B. Zewadski of counsel) for appellees. [Oral argument November 3, 1944, by Mr. Brown and Mr. Zewadski] Before GARRETT, Presiding Judge, and BLAND, HATFIELD, JACKSON, and O'CONNELL, Associate Judges BLAND, Judge, delivered the opinion of the court: Appellant has here appealed from the decision of the Board of Interference Examiners of the United States Patent Office, awarding |