JOHANN MARIA FARINA GEGENÜBER DEM JÜLICHS-PLATZ, SUCCESSOR IN INTEREST TO JOHANN MARIA FARINA, INC., APPELLANT,
v.
CHESEBROUGH-POND, INC., APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court held that the commercial impression created by the appellee's mark is not likely to cause confusion with the appellant's marks, despite both parties selling toiletries.
Appellant opposed appellee's trademark registration, claiming the design portion was likely to cause confusion with its own marks. Neither party took …
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Commercial Impression cases and more on FLexlaw
MARKEY, Chief Judge.
This is an appeal from the decision of the Patent Office Trademark Trial and Appeal Board, abstracted at 164 USPQ 402 (1969), dismissing appellant’s opposition to registration of this combined mark of appellee:
1-Application serial number 280,017, filed September 11,1967.
2-Registration number 789,454, May 11, 1965.
3-Registration number 247,552, October 2, 1928, renewed.
4-Registration number 791,539, June 22, 1965.
Opposition is predicated on the contention that the design portion of the above mark is likely to cause confusion with any one of these marks of appellant:
Neither party took testimony. Opposer’s priority of use is conceded. The goods of the parties are toiletries salable in the same channels of trade. Hence the sole issue is whether the commercial impression created by appellee’s design is likely to be confused with that earlier created by those of appellant.
Appellant argues that the impression created by the marks of both parties is that of a flower, particularly a tulip. We disagree.
Appellant’s labels and advertising have at all times prominently referred to its design as a “crest”. Nothing of record indicates that any member of the public has ever considered or described appellant’s mark as representing a tulip or that appellant did so prior to publication of appellee’s application.
Side-by-side comparison is not the test, Owens-Illinois Glass Co. v. Clevite Corp., 324 F. 2d 1010, 51 CCPA 815, 817 (1963). The focus must be on the “general recollection” reasonably produced by appellant’s mark and a comparison of appellee's mark therewith. So considered, the designs before us are clearly distinct in overall appearance. We think they create different impressions on purchasers, current and potential. See In re Anderson Electric Corporation, 370 F. 2d 593, 54 CCPA 931 (1967); In re Burndy Corporation, 300 F. 2d 938, 49 CCPA 967 (1962). Hence concurrent use of appellant’s and ap-pellee’s marks is not likely to cause confusion.
The decision of the board is affirmed.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Grandpa Pidgeon's OF Mo., Inc. v. Borgsmiller, 477 F.2d 586 (C.C.P.A. 1973)
Authorities Cited
- Application of Burndy Corp., 300 F.2d 938 (C.C.P.A. 1962)
- In re the Application of Anderson Elec. Corp., 370 F.2d 593 (C.C.P.A. 1967)
- Owens-Illinois Glass Co. v. Clevite Corp., 324 F.2d 1010 (C.C.P.A. 1963)