371 F.2d 895
APPLIED RESEARCH AND DEVELOPMENT CORPORATION, Appellant,
v.
LILY-TULIP CUP CORPORATION, Appellee.
Patent Appeal No. 7753.
United States Court of Customs and Patent Appeals.
February 9, 1967.
Francis D. Thomas, Jr., Washington, D. C., for appellant.
Lawrence F. Scinto, New York City, for appellee.
Before WORLEY, Chief Judge, RICH, SMITH and ALMOND, Judges, and Judge WILLIAM H. KIRKPATRICK.*
WORLEY, Chief Judge.
Applied Research seeks registration of "China-Foam" for use on plastic dishes, bowls, plates and cups. Lily-Tulip opposes on its prior use and registration of "China-Cote" for paper containers and cups. The Trademark Trial and Appeal Board, one member dissenting, concluded there would be a likelihood of confusion between the competing marks and sustained the opposition, 145 U.S.P.Q. (BNA) 504.
From our review of the record and briefs we are inclined to agree with the board, at least we feel this record entitles doubt on that score to be resolved in favor of the first user.
Although the goods are not identical in material or construction, there can be no doubt that they are competitive. Although some of the common purchasers, e. g., vending machine operators, might well be termed discriminating buyers, the competing goods are, as the board points out, also sold to the general public. We are not dealing here with such diverse products as, for example, broomsticks and lipsticks, but with articles designed to serve the same purposes. While it is true that "Cote" and "Foam" are quite distinct, still when they are coupled with "China" and viewed in their entirety, as they must be, on goods with so many other things in common, we are inclined to agree that the average purchaser of the instant goods would be likely to assume the products emanated from the same source.
We are familiar with the decisions cited and relied on by both parties, but again point out that precedents in trademark cases are of little value when different facts and marks are involved.
The decision is affirmed.
Affirmed.
Notes:
Senior District Judge, Eastern District of Pennsylvania, sitting by designation
SMITH, Judge (dissenting).
The dissenting member of the board reasoned as follows, 145 U.S.P.Q. (BNA) 504, 506:
* * * I cannot agree with the majority opinion that applicant's mark will suggest to purchasers of disposable dishes and cups that applicant's goods originate from the same source as the goods of opposer. In this regard, the term "CHINA", which is the only element that the marks "CHINA-FOAM" and "CHINA-COTE" possess in common, is obviously intended to be suggestive of the fact that the respective goods of the parties bear some resemblance to china either as to finish or as to hardness. While the third-party registrations do not, for the most part, read on the specific goods of the parties, I believe that they are sufficient to establish that the word "CHINA", or equivalents thereof, have been frequently adopted by others to indicate some connection or resemblance to porcelain or chinaware.
It is my opinion that the respective marks would merely suggest different qualities or characteristics of the respective products rather than bestow any suggestion that they originate from a common source. * * *
agree. I would not, by invoking the rule of doubt in favor of the first user, give to appellee-opposer's mark the breadth of protection necessary to sustain the opposition. The record fails, in my opinion, to establish a likelihood of confusion between the respective marks