male version of a "humanized" two-kernel unshelled peanut-the same kind of nut, not different kinds of nuts. They are not different kinds of animations, as, for example, animal, insect or bird forms of a peanut.

[4] Although the Board found that appellant's "humanized peanut *** has become well known in the trade and to the general public as an indication of origin for opposer's products" (our emphasis), the Board appears to have felt that it was necessary to disregard the basic and obvious similarities between the marks and consider only their differences, in considering likelihood of confusion, because "a representation of a peanut is obviously descriptive of peanuts and products derived from peanuts." From this it apparently reasoned that anyone in the peanut business is entitled to use and register "marks consisting of or comprising fanciful or grotesque representations of peanuts if such marks differ sufficiently from that of opposer to avoid any likelihood of confusion in trade. ***. [Cases cited.]" (Emphasis ours.) We are of the opinion that that is fundamentally erroneous reasoning. Likelihood of confusion, mistake or deception of purchasers in a situation of this type, which has many times been considered by this court and its predecessor, cannot be predicated merely on a consideration of differences in the marks themselves. (See the cases considered infra following our consideration of the cases relied on by the Board.)

[5] Of course, no one can be restrained in the recognized right to illustrate his goods, because pictures of the goods are purely descriptive of them. The right to "humanize" a peanut in the form of a little man, used as a trademark, is an entirely different matter. Appellee is in no sense here exercising its right as a member of the public, engaging in the nut business to illustrate its product. It is, instead, asserting a right, which we do not believe it has, to tread closely on the heels of opposer's very successful trademark and promotion practices, and to acquire an exclusive right to use another little man in the form of a humanized peanut as its sales promotion device or trademark. To follow the Board's reasoning could lead ultimately to everyone in the nut business "humanizing" peanuts in various forms and claiming the right to use them on the ground they are "obviously descriptive." But the right to illustrate the product is not the right to "humanize" it to form a symbol to indicate origin. Engaging in the nut business does not entitle one to adopt as a trademark a humanized version of the identical nut which has already been humanized and adopted as a trademark, and made famous by the advertising expenditures of another.

[6] Opposer has undisputed priority, has established that its mark is deserving of the designation "famous," and that it became so through spending $1,000,000 a year for 10 years to advertise it. Ap

pellee did not enter the field with its humanized peanut until long after that fame had been thoroughly established and is subject to the rule that all doubts are to be resolved against it. Over 40 years ago the Court of Appeals for the District of Columbia, in William Waltke & Co. v. Geo. H. Schafer & Co., 49 App. D.C. 254, 263 Fed. 650, said:

The case is not free from difficulty, but where there is doubt the courts resolve it against the newcomer. Lambert Pharmacal Co v. Mentho-Listine Chemical Co., 47 App. D.C. 197. The reason for this is, as has been said by this court more than once, that the field from which a person may select a trade-mark is practically unlimited, and hence there is no excuse for his impinging upon, or even closely approaching, the mark of his business rival. O. & W. Thum Co. v. Dickinson, 46 App. D.C. 306; Florence Manufacturing Co. v. J. C. Dowd & Co., 178 Fed. 75, 101 C.C.A. 565. Where he does so he is open to the suspicion that his purpose is to appropriate to himself some of the good will of his competitor. This record does not disclose that any other company in the nut business, in all the more than 40 years of appellant's having done so, is using a humanized unshelled peanut as a mark or in advertising, notwithstanding the fact, of which we take judicial notice, that humanizing a product is a common device in promoting and advertising various products.

The Board supported its reasoning and conclusion by the citation of four cases which it neither discussed nor applied to the situation before it. We have carefully considered them and, as pointed out in the ensuing discussion, we do not consider them to be controlling here.

Reddy Kilowatt, Inc. v. Mid-Carolina Electric Cooperative, Inc., et al., 240 F.2d 282, 112 USPQ 194 (4th Cir.), dealt with a situation apparently unique in trademark law. A humanized fantastic cartoon character named Reddy Kilowatt was used for two purposes: (1) as a trademark or service mark in connection with promotional material supplied by his owner to public utilities and (2) to denote the product or service supplied by the utility companies using the promotional material supplied by them to the public. Defendant used another character named Willie Wiredhand in a similar fashion. No claim was made that Willie infringed Reddy. The claim was that the public was confused by defendant imitating, with Willie, the many postures and situations in which Reddy was used by plaintiff and its licensees. The Court of Appeals affirmed the District Court's dismissal of the suit. If there is anything pertinent to the instant case in the opinion it is in the finding that animated characters are an old and common device and that nobody has a monopoly on the idea of using them. The court mentioned many such characters by name including "Planters Mr. Peanut." Insofar as the present case is concerned, appellee cites this case only for the proposition "that there are no exclusive rights in mere animation or humanization" and that is all the rele

vancy it has. No registration issue was present in the Reddy Kilo

watt case.

Judson Dunaway Corp v. Hygienic Products Co., 178 F.2d 461, 84 USPQ 31 (1st Cir.), was a suit for trademark infringement and unfair competition. Plaintiff's product was "Sani-Flush," a chemical cleaner for toilet bowls and auto radiators, and defendant sold a similar product under the trademark "Vanish." The relevant part of the case involved the use as a trademark of the figure of a woman in the act of pouring from the can into a toilet bowl, on which plaintiff had a registration held valid by the court. Defendant also used the figure of a woman in the act of pouring a powder from a can into a toilet but the figures were different, plaintiff's being "a rather dignified and matronly housewife" and defendant's being "a very slim young housewife, perhaps a bride, ultra-fashionably dressed, i.e. in a very short skirt, wearing an elaborate apron, and standing in an exaggeratedly graceful bending position pouring into a watercloset bowl with an expression of almost ecstatic delight upon her face." The court found a "sharp contrast" between the figures.

In the Judson case the court reached its conclusion of non-infringement in steps. First it held that the mere representation of a can with material flowing from it into a toilet bowl was a "common merely descriptive element" which defendant had the right to use. The next step was to hold that defendant had a right to show the material in use "by the sort of person who would normally be expected to use it, that is, by a woman." It said this was "one of the commonest devices in all advertising," and held defendant was entitled to employ "an alluring young woman using its product." Quoting from the play "South Pacific," it said "There is nothing like the frame of a dame," of which defendant was as much entitled to take advantage as was plaintiff. It also found the other elements of the parties' labels to be such as would tend to prevent confusion, such as the word marks, backgrounds, and laudatory slogans. But as to the figures, clearly the salient point of the decision was that both parties were free, along with others, to show the product in use so long as the showing was not such as to confuse the purchasing public as to the product it was getting. No registration issue was present in the Judson Dunaway case. Harad et al. v. Sears, Roebuck & Co., 204 F.2d 14, 97 USPQ 93 (7th Cir.), was a trademark infringement and unfair competition suit involving marks used on trusses for the control of hernia. It does not appear to us to be particularly relevant to the issue here. Plaintiff's mark was the word SPORTSMAN within an oval, alleged to be infringed by the figure of a runner within an oval surmounted by the words ACTIVE MAN. The trial court held the latter to be an infringement of the former. The Court of Appeals reversed, saying that the evidence showed that reproduction of figures of athletes was

very common in advertising this class of goods. It is not clear what proposition the Board cited the case for. Appellee's brief cites it for the proposition that there can be no exclusive rights in a representation of the goods, on which the case is not in point, and as standing for the proposition that there can be no protection on a common advertising device. There is no evidence here that a humanized peanut is a common device, or has been used by anyone other than appellant until appellee started to do so. No registration issue was present in the Harad et al. case.

Jantzen Knitting Mills v. West Coast Knitting Mills, 18 CCPA 843, 46 F.2d 182, 8 USPQ 40, rehearing denied with opinions, 18 CCPA 1142, 47 F.2d 954, 8 USPQ 561, was a 3 to 2 decision refusing to sustain an opposition. Opposer Jantzen's mark was the figure of a girl with arms and legs extended in the act of diving, and wearing a swimming suit, bathing cap and stockings, all usually colored red. The applicant's mark appears to have been a similar figure similarly clad but standing on the end of a diving board in an about-todive position with arms extending to the rear. The Commissioner had said in the opinion under review:

It is in evidence, *** that the pictorial representation of a girl clad in a swimming suit has been used by others before either of the instant parties entered the field. It may be said that such a representation could not be appropriated in any event as a trade-mark for such goods since such a representation would be merely that of the goods themselves in the position in which they are ordinarily used and others engaged in this same business would have a right to so illustrate their goods. These facts, therefore, lead to the conclusion that the differences between the particular representations of the girls and their positions are such that confusion in trade would not be likely. [Emphasis ours.] Neither of the factors referred to in the italicized passages is present in this case. A majority of the court in the Jantzen case, two judges strongly dissenting, after considering the distinction between the right to illustrate the merchandise itself and trademark rights in illustrations containing added "arbitrary" matter which could function as trademarks, said:

We hold, therefore, that appellant's trade-mark rights are limited to the figure of a girl in substantially the position shown in its registered mark, and not to the figure of a diving girl generally.

We think no purchaser would confuse the posture of a girl with arms and limbs extended, as in the act of diving through the air, with the posture of a girl standing on a diving board with her arms held back as if about to spring or dive into water. We may add that the diving board adds further distinctiveness to appellee's mark.

The dissenting judges believed that likelihood of confusion was obvious, concluding:

The effect of the majority holding will probably be that trademarks of many different kinds, representing diving girls, in bathing suits, in slightly different

postures, will be registered, resulting in conditions which Congress sought to prevent.

A case much more nearly in point and not mentioned by the Board is this court's decision in International Latex Corp. v. I. B. Kleinert Rubber Co., 26 CCPA 1321, 104 F.2d 382, 42 USPQ 15. This was a design mark case. Appellee admits it is "a close decision." Applicant's mark, for babies' rubber pants, consisted in the outline drawing of two babies, clad in panties only, one shown in profile, facing to the left, and crawling. The second baby, at the right and to the rear of the first, was stooping and holding and stretching the panties on the first baby. Opposer's mark was a picture of a baby in a crawling posture with its back and rear toward the observer, looking back over its left shoulder, clad in a shirt and panties and a sock and a shoe on one foot. The court agreed with the Commissioner, whose decision it affirmed, that on side by side comparison "these marks could not possibly be confused, nor it is likely that a person thoroughly familiar with either would fail to distinguish the other." [Emphasis ours.] And it agreed also with the statement: "If there is a reasonable probability that some purchasers would be deceived the second mark should not be registered." The court carefully reviewed and quoted at length from the Jantzen case, supra, declined to follow it, and unanimously concluded as follows:

We have given the issues presented careful consideration in the light of the principles announced and applied in the Jantzen Knitting Mills case, supra, and the arguments presented by counsel for appellant, and are of opinion that the marks of the parties so nearly resemble one another that their concurrent use would be likely to cause confusion or mistake in the mind of the public and deceive purchasers. At least, there is a reasonable doubt as to the confusing similarity of marks, and it is well settled that such doubt must be resolved against the newcomer in the field. The American Products Co. v. Herbert F. Braithwaite, 19 CCPA (Patents) 736, 53 F.2d 532 [11 USPQ 147]. [Emphasis ours.]

There are other cases on symbol marks decided by this court which equally support the view we take of the present case. Gilmore Oil Co., Ltd. v. Wolverine-Empire Refining Co., 21 CCPA 943, 69 F.2d 532, 21 USPQ 41, was an opposition to registration of a picture of the head of a lion with mouth open, together wtih the words "Lion Head,” for lubricating oils. Opposer's mark for the same goods was the head of a wolf with its mouth open, together with the words "Wolf's Head." It was argued by applicant that the marks were wholly dissimilar, that a child could readily distinguish them. The court said:

It is true, of course, as argued by counsel for appellant, that the distinction between a lion's head and a wolf's head, when examined for the purpose of comparison, may readily be noted. This, however, is not the test to be applied in cases of this character. *