concurring.
I agree with Judge Lane that the decision of the Trademark Trial and Appeal Board sustaining the opposition and refusing the registration of MYOCHOLINE should be affirmed.
This case turns on the issue of whether registration of appellant’s trademark MYOCHOLINE was properly refused on the ground that it so resembled appellee’s trademark MYSOLINE, previously registered, “as to be likely, when applied to the goods of the applicant, to cause confusion, or to cause mistake, or to deceive.” Section 2(d), Trademark Act of 1946 (15 USC 1052(d)).
Two judges of this court have found a reasonable likelihood of confusion, mistake, or deception and two have not. In my opinion, that fact in itself is sufficient to create doubt on the issue whether confusion is not only possible, but likely. The record also reveals conflicting opinions of the expert witnesses as to whether MYOCHOLINE could be-mistakenly dispensed by pharmacists for MYSOLINE or vice versa. It is well settled that where there is doubt as to whether confusion or mistake is likely, the doubt is to be resolved against the newcomer, in this case MYOCHOLINE. Whitehall Pharmacol Co. v. Frances Denney, 45 CCPA 962, 255 F.2d 693, 118 USPQ 88 (1958); American Throwing Co., Inc. v. Famous Bathrobe Co., Inc., 45 CCPA 737, 250 F.2d 377, 116 USPQ 156 (1957); Kemin Industries, Inc. v. Flavor Corp. of America, 58 CCPA 1180, 440 F.2d 1375, 169 USPQ 595 (1971); Geigy Chemical Corp. v. Atlas Chemical Industries, Inc., 58 CCPA 972, 438 F.2d 1005, 169 USPQ 39 (1971).
Furthermore, in view of the fact that MYOCHOLINE is contraindicated for use by and would cause harm to patients for whom MYSO-LINE is prescribed, any doubt should be resolved in favor of the-exercise of greater care for the protection of the public.
This was the view expressed by this court in Campbell Products, Inc. v. John Wyeth & Bro., Inc., 31 CCPA 1217, 1220, 143 F.2d 977, 979, 62 USPQ 302, 304 (1944) and adhered to in Clifton v. Plough, Inc., 52 CCPA 1045, 1047, 341 F.2d 934, 936, 144 USPQ 599, 600 *954(1965) : “Moreover, it seems to us that where ethical goods are sold and careless use is dangerous, greater care should be taken in the use and registration of trade-marks to assure that no harmful confusion results.”
The Campbell case was cited in Morgenstern Chemical Co., Inc. v. G. D. Searle & Co., 253 F.2d 390, 116 USPQ 480 (3d Cir. 1958), where the court elaborated upon the reasons for the “greater care doctrine”, stating (pp. 393-394) :
The defendant concedes that physicians and pharmacists are not infallible but urges that the members of these professions are carefully trained to detect differences in the characteristics of pharmaceutical products. While this is doubtless true it does not open the door to the adoption by manufacturers of medicine ■of trademarks or names which would be confusingly similar to anyone not exercising such great care. For physicians and pharmacists are human and in common with the rest of mankind are subject to human' frailties. In the field ■of medicinal remedies the courts may not speculate as to whether there is a possibility of confusion between similar names. If there is any possibility of such confusion in the case of medicine public policy requires that the use of the ■confusingly similar name be enjoined.
Although the Morgenstem case was a suit for an injunction rather than for a trademark registration, the public policy in the two situations remains the same. While denial of registration may not prevent use of the confusing trademark, it is bound to have some inhibiting effect. If the use continues and an infringement suit should be brought, the denial of registration, while not conclusive, would be entitled to great weight. W. E. Bassett Co. v. Revlon, Inc., 435 F.2d 656, 168 USPQ 1 (2nd Cir. 1970); Syntex Laboratories, Inc. v. Norwich Pharmacal Co., 437 F.2d 566, 169 USPQ 1 (2nd Cir. 1971). This in itself is a deterrent. In view of the possibility of harm from a mistake, even though the greatest care is ordinarily used by pharmacists, and even though denial of registration may not be a complete deterrent to use ■of the appellant’s trademark, I am of the opinion that the board’s decision refusing to register MYOCHOLINE was proper.