dissenting:
I cannot agre.e that the marks of the respective parties so nearly resemble each other as to be likely to cause confusion or mistake in the mind of the public or to deceive purchasers. It is true that each of the marks consists of two words' containing six syllables, and the marks differ only in the words “early” and “Elgin.” This is a difference, however, in spelling, sound and meaning.
The trade-mark of appellee surely has a definite and well established meaning, which is entirely different from any .meaning that can be suggested by either¡ of the two component words alone. No one reasonably thinks of a geographical locality when confronted with the Avordsi “Early American.” To my mind the only sensible significance that could be attached to this expression is that of an era in the distant past of American life and customs. The words conjure up pictures of knee breeches for men and hoop skirts for women, powdered wigs, beauty spots, lavender and old lace, clipper ships, blunderbusses, country dances, handmade furniture, and the countless other things which cause to rise in the American mind thoughts of the American past.
These comments upon the significance attached to the words “Early American” are supported by the exhibits of advertising matter and *1124pictures of goods, of record here on behalf of appellee, which, as stated by the examiner, “stress the use of ‘Early American’ as referring to the early era of American Colonial history * * * and bring to mind the romance, glamour and atmosphere of those days.”
While it is true that the meaning of a trade-mark is not controlling, as we held in Kroger Grocery & Baking Co. v. Blue Earth Canning Co., 24 C. C. P. A. (Patents) 1098, 88 F. (2d) 725, nevertheless it should be considered along with the other facts and circumstances in the case, and in this instance it seems to me that the meaning of the mark sought to be registered, together with its spelling and sound, differentiates it sufficiently from the trade-mark of appellant to obviate any reasonable liability that its registration for use as applied for would be likely to cause confusion in the mind of the public or to deceive purchasers.
I can see no likelihood of confusion in the pronunciation of the respective trade-marks in radio advertising. They sound entirely different, and radio announcers are noted for their clear enunciation and articulation. Moreover, it is my opinion that in advertising the goods of the appellant stress would be placed on the mark as applied to the articles covered by its registration, namely, jewelry for personal adornment, cigarette cases, vanity cases, card cases, and toilet articles made of or plated with precious metal, and flat and hollow tableware, rather than the filling or refills of soap, creams, or powders which, to my mind, are incidental to its business.
In my opinion the decision of the commissioner should be affirmed.
I am authorized to state that the Presiding Judge joins in this dissent.