We have repeatedly held that the general purpose of the law of trademarks is to prevent one person from trading on the good will of another, and to prevent confusion, mistake, and deceit.

The opposition was sustained because, in the court's judgment "the registration and use by appellant of its mark would be likely to lead to confusion, and would cause many purchasers of lubricating motor oil to purchase the oil of appellant, when, as a matter of fact, they desired to purchase the goods of appellee." The court also quoted with approval a passage from the Commissioner's opinion which seems apropos here:

There seems to have been no good reason why the applicant so long after the opposer had adopted and widely used its mark should have selected a mark possessing so many features similar to those of the opposer's mark.

In Bielzoff Products Co. v. White Horse Distilleries, Ltd., 27 CCPA 722, 107 F.2d 583, 43 USPQ 397, opposer, the owner of the mark "White Horse," including a pictorial representation of a white horse, for whisky, successfully opposed the registration of "Red Horse" for a variety of liqueurs, etc. Applicant's mark consisted of the words together with a representation in red silhouette of a rearing horse with a rider thereon. Opposer also owned a registration of the mark "Black Horse," not used in this country. The goods were held to be of the same descriptive properties and the sole issue was likelihood of confusion. Appellant argued that even a child upon comparison would readily recognize the difference between the "White Horse" and "Red Horse" trademarks. The court, in a unanimous opinion (per Hatfield, J.) held confusion likely and also said this:

It would seem to be clear that if appellant is entitled to register its "Red Horse" trademark for use on its alcoholic beverages in view of appellee's "White Horse" and "Black Horse" trademarks, other producers of alcoholic beverages might well argue that they were entitled to the registration of such trademarks as "Brown Horse," "Gray Horse," "Sorrel Horse," "Bay Horse," and possibly other similar marks for use on such beverages.

That the use and registration of such marks on alcoholic beverages would destroy the value of appellee's registered marks, is so apparent as to require no discussion.

Similarly, it would seem clear in the present case that the value of appellant's humanized unshelled peanut trademark, built up by advertising expenditures at ten times the annual rate of advertising shown to have been behind "White Horse," would be destroyed by use and registration of other humanized unshelled peanut marks for identical goods.

On the opposition of the owners of "White Horse," the Commissioner of Patents held, in another case, there would be likelihood of confusion by the concurrent use on whisky of the words "Silver Stallion" and the picture of a stallion standing on its hind legs. White Horse Distillers, Ltd. v. Berson, 36 USPQ 208.

The predecessor in jurisdiction of this court, in two picture trademark cases involving "Aunt Jemima" sustained oppositions, reversing the Patent Office on the ground of likelihood of confusion, to the registration of quite dissimilar pictures for the same goods. The opposer's well-known mark was the picture of a smiling negress wearing a red bandanna around her head and shoulders. In Aunt Jemima Mills Co. v. Kirkland Distributing Co., 48 App. D.C. 248, 1919 C.D. 162, the mark denied registration, because of likelihood of confusion, was a laughing male negro wearing a colonial type hat and holding in his hands a slice of red watermelon. Opposition was sustained despite many differences (obvious to any child) between the two marks. In Aunt Jemima Mills Co. v. Blair Milling Co., 50 App. D.C. 281, 270 Fed. 1021, 1921 C.D. 173, the same fate befell the attempt to register the picture of a full-faced, clean-shaven smiling male negro cook with a white cap and long apron, bearing in one hand a plate of wheat cakes and in the other hand a cake turner.

In Wayne County Preserving Co. v. Burt Olney Canning Co., 32 App. D.C. 279, 1909 C.D. 318, likelihood of confusion was found and an opposition sustained, reversing the Patent Office, as between two marks for canned foods. Applicant's mark was a full length figure of a colonial military officer. Opposer's mark was only a bust of a similar officer. The court said, inter alia, "it is the duty of the court to protect the prior registrant."

These cases were, of course, under the 1905 act but the confusion in trade clause in section 5(b) thereof differed in no respect material here from that of section 2(d) of the present statute. If anything, the former statute was slightly narrower. The law has clearly been well settled for a longer time than this court has been dealing with the problem to the effect that the field from which trademarks can be selected is unlimited, that there is therefore no excuse for even approaching the well-known trademark of a competitor, that to do so raises "but one inference-that of gaining advantage from the wide reputation established by appellant in the goods bearing its mark," and that all doubt as to whether confusion, mistake, or deception is likely is to be resolved against the newcomer, especially where the established mark is one which is famous and applied to an inexpensive product bought by all kinds of people without much care. Peanuts and other nuts are such goods.

An unusual aspect of this case is the fact that the humanized, male, two-kernel, unshelled peanut symbol which is opposer's trademark has not been static or unchanging, but has assumed various guises. He has changed a topper for a Spanish-style hat and taken up a shawl with his cane. Premium items, which are a form of advertising appealing particularly to young children, have reproduced him in vari

Aunt Jemima Mills Co. v. Blair Milling Co., text supra, at 283.

ous forms. It would not be at all improbable that he should appear adorned with a crown. It is such a reasonable probability that makes confusion, in the sense of section 2 (d), likely.

The decision of the Board is reversed.

REVERSED.

MARTIN, J. (concurring):

I concur in the result of Judge Rich's opinion only because a doubt as to purchaser confusion is aroused in my mind when I contemplate the concurrent use of opposer's and applicant's marks on their respective goods. This is so not because of the individual characteristics of the two humanized peanuts at issue which characteristics are very different, but because of the trademark significance of the concept itself which has been established by opposer's long exclusive (although interrupted as discussed below) usage (37 years) of a humanized male two-kernel unshelled peanut to identify its goods. Now we find, after this length of time, applicant is using the same concept for the same purpose.

Insofar as my usage of the word "exclusive" is concerned, even though there is some indication in the record that opposer has had a constant problem of endeavoring to protect its trademark which implies that others have tried to use the symbol, applicant has not brought to our attention a scintilla of evidence that anyone else besides itself has used for any appreciable time, or is using a humanized male two-kernel unshelled peanut to identify peanuts or any other nuts or nut products. We find only an unsupported statement by applicant which reads:

The representation of a peanut * * * has been used and registered by others in different forms.

Even in this self-serving statement, applicant does not refer to the symbol as a humanized peanut with characteristics of opposer's symbol, but says "representation of a peanut," which could mean anything from a picture of a peanut to one used as the body of an elephant.

One case which should be considered at this time is Planters Nut & Chocolate Co. v. Sessions Company, Inc., 128 USPQ 449. That was an opposition proceedings involving, as a trademark for peanut butter, a rather odd looking symbol which, I presume, is supposed to be a humanized peanut. There the Board held in favor of applicant. Whether that symbol was ever registered or actually used for an appreciable time, or is now being used, is not revealed.

In that case, however, of the many third party registrations which the applicant introduced into the record, only two consisted of humanized peanuts, one for peanut butter and the other for ice cream. How long these were used or whether they are being used now is unknown to me.

All in all, even though it is apparent that there are some incidents of registration of humanized peanuts, there is nothing that has been brought to my attention which proves that opposer has not enjoyed a long exclusive (interrupted at times) usage of a humanized male twokernel unshelled peanut to identify its goods, i.e. nuts, not confections, and nut products.

WORLEY, Chief Judge (dissenting):

The mark which the Crown Company states it has been using since 1953 and which it seeks to register is:

One of the marks upon which the Planters Company bases its opposition is:

In a unanimous decision dismissing the opposition, the Trademark Trial and Appeal Board said:

Considering, however, that a representation of a peanut is obviously descriptive of peanuts and products derived from peanuts, whatever goodwill attaches to opposer's mark must necessarily lie in its particular design rather than in a representation of a peanut per se. Opposer may not, therefore, by its prior adoption and use of a design of a humanized peanut, preclude the subsequent adoption and registration by applicant and others engaged in the sale of nuts and nut products of marks consisting of or comprising fanciful or grotesque

representations of peanuts if such marks differ sufficiently from that of opposer as to avoid any likelihood of confusion in trade. See: Reddy Kilowatt, Inc. v. Mid-Carolina Electric Cooperative, Inc., et al., 112 USPQ 194 (CA 4, 1957); Judson Dunaway Corporation v. The Hygienic Products Company; The Hygienic Products Company v. Judson Dunaway Corporation, 84 USPQ 31 (CA 1, 1949); Jantzen Knitting Mills v. West Coast Knitting Mills, 8 USPQ 40 (CCPA, 1931); and Harad et al., doing business as Industrial Engineering Associates v. Sears, Roebuck and Company, 97 USPQ 93 (CA 7, 1953).

It seems clear from the above illustrations that the marks of the parties are distinctly different in every material respect and that purchasers would not be likely to attribute products sold thereunder to a single source.

Whether the Board erred in so holding is the single issue for this court to decide, and our decision is necessarily controlled by the standard Congress laid down in section 2(d) of the Lanham Act which

states:

Sec. 2. Trademarks registrable on the Principal Register

No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it

*

(d) consists of or comprises a mark which so resembles a mark registered in the Patent Office or a mark or trade name previously used in the United States by another and not abandoned, as to be likely, when applied to the goods of the applicant, to cause confusion or mistake or to deceive purchasers:

I find no error in the Board's reasoning or conclusion. As between the Board's position and the criticism levelled at it by the majority, it is no problem to choose the former over the latter.

As Judge Kirkpatrick so clearly points out, it would be difficult to imagine two so-called humanized peanuts with less in common than is the case here. Under such circumstances it seems inescapable that the result of the reasoning of the majority, or more accurately put, the nominal majority, is to give the Planters Company a perpetual trademark monopoly domination on any and all humanized peanuts. Indeed, the majority seems to go so far as to virtually invite Planters to take over at its pleasure the mark which the Crown Company has been using since 1953 and which it seeks to register.

Although, as is generally true in trademark precedents, the cases cited by the Board are not sufficiently in point to control here, it seems to me those cases give greater support to the Board's reasoning than comfort to the criticism by the majority. Nor do I find any of the decisions cited by the majority sufficiently in point to control.

The concurring opinion quite correctly concedes that the "characteristics" of the instant humanized peanuts "are very different,' yet concludes that the "concept" of humanizing a two kernel, unshelled peanut together with "exclusive" use for 37 years, are sufficient to prohibit registration of applicant's mark.