DISSENTING OPINION
Bland, Judge:I can not agree to the additional opinion written by Judge Lenroot in this case. In the first place, I do not think the reasons sufficient for our failure to consider the question of confusion between appellee’s mark and the mark “ Diving Girl ” and “ Red Diving Girl ” and especially should we consider the question with reference to the confusion which would result in view of the registered mark “Red Diving Girl.” I believe, under the circumstances of this case, that the holding of the majority that the question is not. raised by assignments 1 and 2 is unwarranted. In view of the fact that the mark “ Red Diving Girl ” was pleaded in the notice of opposition, is set out in the record, and ivas before the commissioner, the-same being referred to, by number, in the commissioner’s decision,, we should have considered it. Since we failed to consider it and since it is probable that a_ different result would have been reached if we had considered it, a rehearing should be granted.
The fact that the majority feels it necessary to render an additional opinion will be taken as an indication that the court would not have arrived at the same conclusion if it had considered the two-trade-marks “ Diving Girl ” and “ Red Diving Girl.” It seems to me-that there is just as much likelihood of confusion between appellee’s mark and the pictorial representation of a red diving girl as there-would be between appellee’s trade-mark and the trade-mark involv*1145ing the words “ Red Diving Girl.” It is well settled in Sherwin-Williams Co. v. Naamlooze, etc., 146 M. D. 460, 15 T. M. Rep. 270, that the word “ Capitol ” is to be given the same effect as the picture of the Capitol. To the same effect is In re Woolwine, 97 O. G. 1373, in which the picture of a donkey and the word “ Donkey ” were involved. Certainly if an applicant is not permitted to register the word “Bear,” he would not be entitled to register the picture of a bear. Great Bear Spring Co. v. Bear Lithia Springs Co., 45 App. D. C. 305, 6 T. M. Rep. 430.
As above indicated, the additional opinion points to the weakness of the original opinion, that is to say, it seems obvious that confusion will result from the two red diving girl trade-marks, whether in pictures or words.