specially concurring:.
I agree with the conclusion of the majority that confusion is not likely to result between the trade-mark “W. H. Bull’s Herbs and Iron,” associated with an elaborate pictorial representation and appellant’s registration “ Spicer’s Nux Herbs and Iron,” the word “ Spicer’s ” appearing as a facsimile signature.
I am not convinced that the phrase “ Herbs and Iron ” is not the “ dominant feature ” of appellant’s mark and, in my view, this consideration is not important to the decision of the case.
Although appellee registered, under the 10-year clause, its mark containing the words “ Herbs and Iron,” and although the term is presumed to have acquired a secondary meaning, it is not the exclusive property of the registrant to the extent that registrant can prevent anyone else from using the term if the other, in using same, so uses it as to avoid confusion of origin. Thaddeus Davids Co. v. Davids Manufacturing Co., 233 U. S. 461.
Irrespective of which is the dominating part of appellee’s mark, appellant, under the circumstances of this case, has no right to use this part of appellee’s valid trade-mark, which is presumed to acquire a secondary meaning, without including in its- mark other matters which are sufficient to make confusion in origin improbable. This, I think, appellant has done, and I therefore specially concur in the result.