dissenting:
The goods of the parties are identical and their trade-marks substantially so in significance. Appellant, admittedly, has used its mark “Love Lane” in the sale of perfume for many years prior to appellee’s entry into that field with its mark “Forbidden Love.” The goods are sold through beauty shops, drug and department stores, and to the general public, which in making purchases of perfume is not required to stop, look, and analyze the features of the contested marks so as to prevent the newcomer from palming off its merchandise as that of appellant. Van Camp Sea Food Co., Inc. v. Westgate Products Co 18 C. C. P. A. (Patents) 1311, 48 F. (2d) 950, 9 U. S. Pat. Q. 417; Magitex Co., Inc. v. John Hudson Moore, Inc., 33 C. C. P. A. (Patents) 956, 154 F. (2d) 177, 69 USPQ 133.
The word “Love” is the dominant part of each of the marks here in issue, and the law is well settled that trade-marks, or the dominant part thereof, which merely describe the goods with which they are used, or the character or quality thereof, or the purpose for which they are used, cannot be registered, since any one is entitled to use such descriptive words in describing a product of the same kind which he offers for sale to the public or any part thereof. In re General Permanent Wave Corporation, etc., 28 C. C. P. A. (Patents) 1099, 118 F. *1164(2d) 1020, 49 USPQ 184; Miles Laboratories, Inc. v. Foley & Co., 32 C. C. P. A. 714, 144 F. (2d) 888, 63 USPQ 64; In re W. A. Sheaffer Pen Company, 34 C. C. P. A. (Patents) 771, 158 F. (2d) 390, 72 USPQ 129.
The prevailing opinion cites the Miles Laboratories case and appropriates the doctrine thereof as a basis for holding that “Love” is not a coined or fanciful word but one merely descriptive of merchandise consisting of perfume. The term “Vita” in the Miles Laboratories case was the dominant part of the marks, and the court there properly held that Vita was merely descriptive of the vitamin product to which the marks were applied.
Reference to the dictionaries discloses that “love” is nowhere therein defined as perfume nor as possessing any characteristic of perfume. Moreover, there is no evidence of record, as there was in the case of Parfumerie Roger & Gallet, etc. v. John Wanamaker, 57 App. D. C. 267, 20 F. (2d) 283, upon which the commissioner erroneously relied below, 74 USPQ 193, in reversing the proper decision of the Examiner of Interferences upon the facts presented. The word “Love” is in nowise descriptive of the merchandise here involved but is purely arbitrary in meaning when applied to perfume and, in the total absence of evidence to the contrary, there is no basis for holding that “Love” is merely descriptive of perfume or a function thereof.
Had appellee wished clearly to indicate the origin of its goods, there are innumerable words which it might have selected or coined, any one of which could not be open to the challenge of confusing similarity to appellant’s mark. In view of the facts of record, it is impossible to escape the conclusion that appellee in adopting the mark “Forbidden Love” hoped and expected it would reap the advantage of appellant’s good will, built up by the successful sale of its product over a long period of years, and thereby profit by the confusion in trade by reason of the similarity of its mark to that of appellant. See Steinreich v. The Coca Cola Co., 21 C. C. P. A. (Patents) 722, 67 F. (2d) 498, 19 USPQ 288.
The decision of the Commissioner of Patents, for the reasons here-inbefore stated, should be reversed.