The Patent Office contends that claim 7 is broader than claim 6 of the patent in two respects: (a) a change in the claim language with respect to the openings in the guide and spacer blocks, and (b) a change in the language with respect to the reference planes. If claim 7 is broader in either of these respects, rejection of the claim was proper. For the sake of completeness, however, we shall consider both.

(a) Block Openings

On this point the corresponding language of claim 6 and rejected claim 7 read as follows:

Claim 6:

*** said guide blocks and spacer blocks being stacked over said base member adjacent its opposite ends, said blocks having openings therethrough axially aligned with each other and with openings in said base member, *. [Emphasis ours.]

Claim 7:

*** said guide blocks and spacer blocks being stacked over said base member adjacent its opposite ends, said guide blocks having openings therethrough axially aligned with openings in other guide blocks in a stack and with a corresponding opening in said base member, * *. [Emphasis ours.]

The Examiner's position was that the normal meaning of the claim 6 language would be that all of the blocks had openings as defined but added that, even if this were not so, the antecedent of "said blocks" was both guide blocks and spacer blocks, saying:

We see therefore by inserting the word guide before "blocks" in the term "said blocks" that the claim now requires only that the guide blocks have openings therethrough while claim 6 requires that both the guide and spacer blocks have holes therethrough.

In affirming, the Board held that, as a minimum, claim 6 required that "at least one guide block and at least one spacer block * have openings, as recited."

Appellant would have us hold that the insertion of the word "guide" in claim 7 is a "narrowing statement." Whatever it may be, it certainly is not narrowing since it removes a limitation in claim 6 requiring, by a most liberal view, that at least one spacer block has to have the defined opening. Appellant's argument disputes the holding that claim 6 does contain that limitation and is the equivalent of asking us to read into claim 6 the meaning that only some of "said blocks" have openings. We are asked to hold further that, as so read, the claim would be satisfied by two or more guide blocks having aligned openings. This argument further proposes that claim 7 should be restricted in its meaning to require that all the guide blocks have aligned openings, though the claim does not say so. All of this,

says appellant, leads to the conclusion that, with respect to this point (a) under consideration, claim 7 is narrower than claim 6.

Having carefully considered these arguments, pro and con, we think there is no question but that, with respect to block openings, claim 7 is broader than claim 6. Claim 7 makes it crystal clear that there need be no openings at all in the spacer blocks. A normal reading of claim 6 leads one to the conclusion that the antecedent for the "said blocks" which have the aligned openings can be nothing other than "said guide blocks and spacer blocks." It seems as unreasonable to contend that all of them do not have openings, under claim 6, as it would be to contend that that claim does not require that all of those blocks do not have to be stacked over the base member. On an issue of this kind we think the board was more than liberal in going as far as it did in saying that the claim would be satisfied by openings in one guide block and one spacer block, so as to include one of each category. We certainly cannot find ground for reversing its decision on point (a).

(b) The Reference Planes

The phrases in question on this point are as follows:

Claim 6:

*** said guide blocks each having a side disposed away from said primary reference line and positioned equidistantly from said secondary reference lines, said sides forming reference planes for comparison with the positions of said gauge blades in the guide blocks,

Claim 7:

*** said guide blocks each having a side disposed away from said primary reference line and positioned equidistantly from said secondary reference lines, said sides locating reference planes from which the positions of said guage blades in the guide blocks may be compared, *

The difference here is between the outside faces of guide blocks forming reference planes, against which, for example, one can feel the end surfaces of the guillotine gauge blades to see how far in or out of alignment they may be with respect to the planes, and locating such reference planes.

Appellant presents this change of language to us as something which "improves, by more precise and accurate terminology, an inapt designation and description of appellant's invention." We have given careful attention to the supporting arguments but feel that the Examiner takes the more tenable position in saying:

The term "locating" has not appeared previously in this case in this context. ***The terms such as "constitute" and "form" used in the case heretofore indicate that the surfaces involved are part of the reference plane. The word locate is not defined in the specification but it does mean something else than

what is meant by the terms previously used. This term (locate) merely requires that the surfaces in question act as a reference point from which point the reference plane can be found. Thus as defined in claim 7 there is no longer a requirement that the surfaces be part of the reference plane. This is considered broader than the language of claim 6.

We think that the requirement of claim 6 that the guide block sides must form reference planes means that the sides must be flat and lie in planes. Considering that a plane can be located geometrically by three points, or a straight line and one point, the language of claim 7 gets away from the claim 6 requirement and necessarily is broader. We therefore affirm the holding below on point (b). The decision of the Board is affirmed.

AFFIRMED.

MARTIN. J., sat but did not participate in decision because of illness.

U.S. Court of Customs and Patent Appeals

ARNOLD, SCHWINN & Co. v. EVANS PRODUCTS COMPANY

No. 6796. Decided May 18, 1962

[49 CCPA 1113; 781 O.G. 18; 302 F.2d 765; 133 USPQ 548]

1. TRADEMARK-CONFUSING SIMILARITY-MARKS MUST BE CONSIDERED IN THEIR ENTIRETIES.

"In determining the issue here, whether the appelle's mark when applied to its goods is likely to cause confusion or mistake or deception of purchasers because of its similarity to the appellant's mark, the respective marks must be considered in their entireties."

2. SAME SAME COMPOSITE MARKS-DESIGNS SIMILAR AND WORDS DISSIMILAR. Held that "*** when comparing composite marks involving designs and words, with the designs similar and the words dissimilar, the matter of which of the two features dominates the marks is usually controlling in the determination of the question of likelihood of confusion."

APPEAL from the Patent Office. Opposition No. 38,096.

AFFIRMED.

Horton, Davis & McCaleb, Marshall W. Sutker and L. W. Brugman (James A. Davis of counsel) for appellant.

Harness, Dickey & Pierce, Robert L. Boynton and Neal A. Waldrop, for appellee.

Before RICH, Acting Chief Judge, and MARTIN, and SMITH, Associate Judges, and Judge WILLIAM H. KIRKPATRICK, United States Senior District Judge for the Eastern District of Pennsylvania KIRKPATRICK, J., delivered the opinion of the court.

This is an appeal from the decision of the Trademark Trial and Appeal Board of the United States Patent Office, 128 USPQ 10, dismissing an opposition by the appellant to the appellee's applica

tion Serial No. 39,208, filed October 21, 1957, for registration, for wheeled toys-namely, tricycles and trailers, of the following mark:

The opposition is predicated on the appellant's prior registration and use, for bicycles, of the trademark1 shown below:

The drawing of the trademark is lined for red and gold and the words "QUALITY" and "CHICAGO" are disclaimed apart from the mark. The competing marks are composite trademarks, each consisting of a word incorporated in a design. The differences in the words "SCHWINN" and "EVANS" are apparent. The designs are similar in that, in both, the letters constituting the words are displayed in cruciform arrangement within concentric circles. They are different, however, in that the circle portion of the appellant's mark is somewhat more elaborate than that of the appellee, having the words "QUALITY" and "CHICAGO" within it and having a serrated outline giving the appearance of a seal.

The appellant took the testimony of four witnesses, two of its vice presidents and two of its dealers. The appellee took no testi1 Registration No. 407,574, issued June 13, 1944, 1905 Act.

mony but introduced into the record a number of third party registrations, relied on to show that "displaying word trademarks in cruciform arrangement is very old and widely used."

The appellant is the prior user here, its mark, designated the "Schwinn Seal of Quality" by the witnesses, having been used since 1921 and having been affixed to every bicycle manufactured by it since 1939. Sales of the appellant's bicycles exceeded two hundred and fifty million dollars in the period from 1921 through 1958 and the appellant spent over four million dollars in advertising from 1949 through 1958.

The goods of the parties are closely related and normally move through the same trade outlets to the same class of purchasers. Both marks display the word portions in a cruciform arrangement within a circle, but the Board held such arrangement to be "insufficient, in and of itself, to cause purchaser confusion," citing Skram Co. v. Bayer Co., Inc., 23 CCPA 1049, 82 F.2d 615, 29 USPQ 142, modified and rehearing denied, 23 CCPA 1286, 84 F.2d 392, 29 USPQ 612. In taking the view that the opposition should be sustained, the dissenting board member found it significant that only the appellant and the appellee use a symbol comprising a cross form within concentric circles as a mark or part of a mark for bicycles or tricycles. He also indicated that his opinion was influenced by the appellant's "use of such a symbol for nearly forty years" and its extensive advertising.

Conceding that there are some differences in the marks, the appellant contends, however, that "the resemblance between and similarities in the two marks cause them to create the same overall impression upon the viewer."

[1] In determining the issue here, whether the appellee's mark when applied to its goods is likely to cause confusion or mistake or deception of purchasers because of its similarity to the appellant's mark, the respective marks must be considered in their entireties. Appollo Shirt Company v. Enro Shirt Company, Inc., 35 CCPA 849, 165 F.2d 469, 76 USPQ 329; Kitchen-Quip, Inc. v. Sunbeam Corporation, 42 CCPA 869, 222 F.2d 265, 105 USPQ 430. [2] However, when comparing composite marks involving designs and words, with the designs similar and the words dissimilar, the matter of which of the two features dominates the marks is usually controlling in the determination of the question of likelihood of confusion.

It seems to us that since bicycles, at least, are usually bought by name, the designs serve primarily as the background for display of the words. Indeed, the cruciform arrangement itself, in spelling out the words both vertically and horizontally with the middle letter common to both, draws attention to the words and encourages the

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