dissenting:
I am not in agreement with the majority, either in the conclusion or the reasons assigned for arriving at the same. The goods of the respective parties are not only of the same descriptive properties but they are so nearly identical in many respects that I cannot escape the conclusion that the use of “MEDS” on appellant’s goods will lead to the character of confusion which the trade-mark law sought to prevent. \
The mark “MEDS” is suggestive that the goods upon which it is used are medicinal in character, whereas they are not in any respect used for medicinal purposes. The adoption of the mark alone would suggest to me a desire on the part of its user to reap where it has not sown and to profit by the confusion with such marks as “MEDI-PAX.”
The majority, in stating the case, have emphasized the difference in the uses and the manner of selling the goods of the parties. Advertising practices and manner of sale, as we have said many times, are always subject to change and should ordinarily not influence us in our decision.
I disagree with the manner in which the majority have dissected the appellee’s trade-mark and the conclusion that “med,” being-descriptive, is not the dominant portion of the mark. The mark as a whole is not descriptive, and I cannot concur in a line of reasoning which permits the whittling away of a valid mark and thus promotes confusion in the purchasing public.
Some of the best and most favorably known trade-marks have syllables which, if considered alone, are descriptive; and the descriptive syllable may be the main feature of the mark, yet the mark as a whole may unquestionably be a valid and valuable one. If the reasoning of the majority in this case had been applied in numerous decisions heretofore handed down by this court, we should have arrived at different conclusions. For instance, in The Celotex Company v. Arthur Edward Millington, 18 C. C. P. A. (Patents) 1484, 49 F. (2d) 1053, 9 USPQ 353, the marks “CELOTEX” and “FIR-TEX” were compared. We there held that “FIR-TEX” could not be registered over “CELOTEX” notwithstanding the claim that the term “tex” was common property. There was no similai’ity between the terms “celo” and “fir.” Nevertheless, we held, as we have in numerous other cases, that the marks should be regarded as a whole and not dissected, and that the registration of “FIR-TEX” would mislead the public in view of the well-known mark “CELOTEX.” I need not cite a long list of cases to the same effect which I think are, in effect though not expressly, overruled by the reasoning which the majority have applied to the instant issue.
*895If the conclusion of the majority is right and the appellant may register a mart containing the descriptive term “med” on goods that have no medicinal qualities, it would seem to follow that the appellee, in the natural extension of its business, would have an equal right to use its term “MEDIPAX” on goods identical with those of appellant. The goods are substantially identical in construction and mode of use. When appellant’s mark is registered, appellee, according to the majority could not use its mark on its tampon if it dispensed with the medicinal element of the same. •
I think the tribunals of the Patent Office correctly decided the issue, and I would affirm the decision of the Commissioner of Patents.