MOORE

v.

PROCTER & GAMBLE CO.

Appellee’s uncontroverted evidence established, in addition to that which has been set forth hereinbefore, that “Duz is sold on a broad scale throughout the United States and is in general distribution in practically every retail grocery store in this country. Also in numerous drug, department and variety stores. Many of the retail grocery stores, particularly in rural areas, are general stores that handle practically everything farm homes need for personal requirements.”

The fact that the opposer’s product and that of the applicant are both related to cleanliness and both are sold in the same channels of trade to the same class of purchasers does not of itself endow the goods on which the competing marks are used with the same descriptive properties.2 Nevertheless, under a long line of established authorities, too numerous to recite here, the fact that they are sold in the same establishments throughout the country is a factor, accompanied by the other circumstances of the case, which must be given substantial weight.3 '

The Court of Customs and Patent Appeals has held that the terms “same class” and “same descriptive properties” as used in section 5 of the Trade-Mark Act of 1905 are synonymous in their meaning.4 This court has further pointed out that: “Obviously, merchandise of contending parties may be dissimilar, and yet the trade-marks thereon may so nearly resemble each other as to cause, when the merchandise is sold to the general public, confusion and mistake, and to make deceit an easy matter of accomplishment” 5 for the newcomer. Therefore, this court has laid down the rule that the words “same class” and “same descriptive 'properties” were intended to be given a limited or an extended meaning and application depending on whether or not the use of identical or similar trade-marks would be likely to cause confusion in the mind of the public or to deceive purchasers as to the origin of the goods;6 and that there is always more likelihood of confusion relative to the sale of merchandise where all of a previously registered trademark has been appropriated by the new comer if the trade-mark, such as we have here, is arbitrary in character.7

We have likewise held by a unanimous decision that in legal contemplation, goods are of the same descriptive properties if the use of the same mark on the involved varieties of packaged merchandise would suggest to the purchaser that they have the same source of origin; that is, that they were made or sold by the same concern and came from the same place.8 In other words, it is not the difference in the competing goods in cases like this that causes the likelihood of confusion; it is the similarity of the marks which are attached to the packaged goods leading one to believe that they have a common source of origin.

Purchasers of 'inexpensive goods such as washing and cleaning compounds are not expected to exercise the degree of care and discrimination in making their purchases as would be exercised in the selection by them of more expensive and rarely purchased articles.9 Having taken no testimony, appellant failed to establish that it had spent anything whatever in advertising its goods. Even so, there was no legal requirement on the part of purchasers under the trade-mark law to make a side-by-side comparison of the goods and the competing marks in issue, had they known .of appellant’s product and trade-mark.10

Moreover, in view of the poison contained in appellant’s product, the protection of the public interest should be here considered in resolving any existing doubt against the registration of the newcomer’s mark. Under such circumstances, this court is interested in seeing not only that the purchaser makes no mistake himself, but also that he is not led into confusion or mistake by error of the clerk or grocer involved in the transaction11

Not only was appellee’s trade-mark “Duz” appropriated in its entirety but appellee’s slogan “Does More,” phonetically spelled, was particularly appropriated by appellant. The law is thoroughly established in this jurisdiction that an opposer to the registration of a newcomer’s trademark is entitled to rely not only upon his own previously registered trade-marks, but also upon established trade-names, slogans, and designs analogous to a trade-mark use.12

The involved goods under the authorities hereinbefore cited are unquestionably, as the Acting Commissioner properly held, broadly of the same general class and are goods of the same descriptive properties. Appellant has contended, however, that appellee by its proof has shown no actual damage. It is elementary that, in an opposition proceeding, the issue does not require proof of damage as a result of actual confusion but only that the likelihood of confusion may exist. Moreover, as Judge Learned Hand, on the point in question, stated in Yale Electric Corporation v. Robertson, 2 Cir., 26 F. 2d 972, 974: “However, it has of recent years been recognized that a merchant may have a sufficient economic interest in the use of his mark outside the field of his own exploitation to justify interposition by a court. His mark is his authentic seal; by it he vouches for the goods which bear it; it carries his name for good or ill. If another uses it, he borrows the owner’s reputation, whose quality no longer lies within his own control. This is an injury, even though the borrower does not tarnish it, or divert any sales by its use; for a reputation, like a face, is the symbol of its possessor and creator, and another can use it only as a mask. And so it has come to be recognized that, unless the borrower’s use is so foreign to the owner’s as to insure against any identification of the two, it is unlawful. * * * ”

In view of the conclusion hereinbefore expressed, it is deemed unnecessary to discuss other points raised by the reasons of appeal or in the argument of counsel for the respective parties. Therefore, the decision of the Commissioner of Patents, for the reasons stated, is affirmed.

Affirmed.

GARRETT, Chief Judge, concurs in the conclusion.

JOHNSON and WORLEY, 'Judges, dissent.

. For a valuable and concise discussion of the “bugbear” term “merchandise of the same descriptive properties,” the present status of the law under the Act of 1905, and why Congress abolished its use in the Act of July 5, 1946, 15 U.S.C.A. § 1052, see the decision of Federico, Examiner in Chief, acting for the Commissioner of Patents, in the recent case of Greyhound Corp. v. Robinson Houchin Corp., 89 U.S.P.Q. 621, 624-625.

. Kraft-Phenix Cheese Corp. v. Consolidated Beverages, Ltd., 107 F. 2d 1004, 27 C.C.P.A., Patents, 803.

. See, for example, Forst Packing Co., Inc., v. C. W. Antrim & Sons, 118 F. 2d 576, 28 C.C.P.A., Patents, 1005; Langfield v. Solvit-All Corporation, 49 F. 2d 480, 18 C.C.P.A., Patents, 1313, 1315; Philadelphia Inquirer Co. v. Coe, 77 U.S. App.D.C. 39, 133 F. 2d 385, certiorari denied, 318 U.S. 793, 63 S.Ct. 993, 87 L.Ed. 1158; Yale Electric Corporation v. Robertson, 2 Cir., 26 F. 2d 972; L. E. Waterman Co. v. Gordon, 2 Cir., 72 F. 2d 272.

. Cheek-Neal Coffee Co. v. Hal Dick Mfg. Co., 40 F. 2d 106, 17 C.C.P.A., Patents, 1103, 1104.

. The I. E. Palmer Co. v. Nashua Manufacturing Co., 34 F. 2d 1002, 1005, 17 C. C.P.A., Patents, 583, 586.

. The B. F. Goodrich Co. v. Hockmeyer, 40 F. 2d 99, 17 C.C.P.A., Patents, 1068, 1075.

. Lever Brothers Co. v. Sitroux Co., 109 F. 2d 445, 27 C.C.P.A., Patents, 858.

. Rice-Stix Dry Goods Co. v. Industrial Undergarment Corp., 152 F. 2d 1011, 33 C.C.P.A., Patents, 813. See also Greyhound Corp. v. Robinson Houchin Corp., 89 U.S.P.Q. 621 at 624.

. Lever Brothers Co. v. Riodela Chemical Co., 41 F. 2d 408, 17 C.C.P.A., Patents, 1272.

. Celanese Corp. of America v. Vanity Fair Silk Mills, 47 F. 2d 373, 18 C.C.P.A., Patents, 958; Magitex Co., Inc., v. John Hudson Moore, Inc., 154 F. 2d 177, 33 C.C.P.A., Patents, 956; Unfair Competition and Trade-Marks, by Harry D. Nims, Fourth Edition, 1947, page 1024.

. Hoffman-La Roche, Inc., v. Kawerk, 148 F. 2d 557, 32 C.C.P.A., Patents, 954; Schering & Glatz, Inc. v. Sharpe & Dohme, Inc., 146 F. 2d 1019, 32 C.C.P.A., Patents, 827, 833.

. Cheek-Neal Coffee Co. v. Hal Dick Mfg. Co., (Good to the Last Drop), 40 F. 2d 106, 17 C.C.P.A., Patents, 1103, 1104; Central Iron & Steel Co. v. Republic Steel Corp., 102 F. 2d 899, 26 C.C. P.A., Patents, 1091; Lucky Heart Laboratories, Inc., v. Neumann, 154 F. 2d 519, 33 C.C.P.A., Patents, 1034.