DISSENTING OPINION
Garrett, Judge:The goods of the respective parties to the controversy are not of the same class, and as of course, are not of the same descriptive properties. They have no uses in common; the results obtained by their use are wholly different — indeed if the functions of the goods may be compared at all they are more or less antagonistic. While appellee took no testimony, the petition for registration shows that its product is an adhesive cement, and the specimen, filed as required by law, showing the manner in which the mark is actually *835used, recites that the cement “Will stick leather to leather, rubber to rubber, rubber to leather, cloth to leather', cloth to rubber, cloth to cloth.” Appellant’s product is a lubricating oil, and, as is suggested in the brief for appellee, “* * * it is hard to conceive of products having more different uses than lubricating oil and adhesive cement.” Even the containers (if the matter of containers were of importance which I do not think is the case) are entirely different in shape, so far as the exhibits before us disclose. Appellant’s product is in rounded flattened cans, while that of appellee is in circular cans.
It is probable, of course, that many persons who use the one product also use the other, but that is true of numberless articles.
I cannot imagine how the slightest confusion as to origin, or as to anything else about the articles, can reasonably arise from the use of identical marks upon the respective products. If it does, it is due solely to the mark and not to any inherent characteristics or properties of the goods. The evidence in the record as to actual confusion is, in my opinion, so meagre and inconsequential as not to require serious consideration. Evidently the proprietor of the store who replied to the inquiry of appellant’s salesman, as recited in the majority opinion, “Why, yes, we have an article by the name of ‘Three In One Cement.’ Is that made by you people?” could not have been very greatly confused. I apprehend such testimony as that, and such testimony as is cited by the majority in the other instance, would be given little weight or attention in an equity proceeding, and it should receive little here, even if, as the majority seem determined to do, we make the question of registration an equitable proceeding rather than, as I have constantly thought it to be, a purely statutory proceeding.
While the majority opinion seems to give recognition to the statutory words “merchandise of the same descriptive properties,” it nowhere points to a single element inherent in the goods themselves which is the same or even similar. Reason as we may, think of the cáse as we will, the naked fact remains that the majority decision in the final analysis rests upon the proposition that tire mark may be looked to in determining the question of “same descriptive properties” and notwithstanding the apparent recognition given the statutory phrase quoted, the decision in effect reads that phrase out of the statute. The decision means, and can mean nothing else, as I view it, that hereafter without any reference to the properties of the goods, this court will look to the mark, and if, in our judgment, the mark might create some sort of confusion, then it' must follow that the goods are of the same descriptive properties.
I have never felt and do not now feel that such is a correct interpretation of the statute. Any trade-mark can be abused or misused. *836Both the common law and statutory law make xirovision for protection against abuses and misuses, and proper tribunals are provided in which to enforce remedies. It happens that this court has not so far been clothed with authority to enter the- equity field. There are many very sound legal reasons why we should not try to force ourselves into it.