concurring.
I concur in the result reached by Judge Rich in this case. It may appear at first blush that affirming the decision of the TTAB sustaining the petition for cancellation of appellant’s registration is a harsh’ judgment considering the nonuse by the appellee at the time of the filing of the petition. Deeper analysis demonstrates that this is not so. My approach to this case is different from both Judge Almond’s and Judge Rich’s. While each of them focuses on the viability of the rule extracted from the Old Monk case, I am of the view that the particular facts of the present case are so different from Old Monk that it is neither necessary nor desirable to decide now whether to bury the *1136rule or resurrect its spirit in the form of a new, but not dissimilar, rule.
The chronology of events which led to this appeal, as I gather it from the record, is as follows:
October 15, 1964 — alleged date of adoption of marks by appellee;
June, 1965 — use of marks in interstate commerce by appellee (Guam installations) ;
September 3, 1965 — alleged date of first use in commerce by appellant;
September 16, 1965 — filing date of appellant’s application wliicb matured into tbe registration herein sought to be canceled;
April 8, 1966 — alleged filing date of application Serial No. 243,700 for the registration of the mark MULTICAP for multi-tap electrical capacitors to appellee;
September 6,1966 — date of appellant’s registration involved herein;
September 18, 1967 — filing date of the appellee’s petition for cancellation by which this litigation was initiated.
Prior to the issuance of appellant’s registration, but after the filing date of appellee’s application, the Patent Office had before it copend-ing applications for registration of virtually the identical mark on goods of broad overlapping description. It seems surprising that no trademark interference was declared in view of § 16 of the Lanham Act, 15 USC1066, which provides:
Whenever application is made for the registration of a mark which so resembles a mark * * * for the registration of which another has previously made application, as to be likely when applied to the goods or when used in connection with the services of the applicant to cause confusion or mistake or to deceive, the Commissioner may declare that an interference exists.
I appreciate that the langauge of the statute is permissive rather than mandatory. Nevertheless, I am aware of the fact that interferences between trademark applications have in the past been declared under similar circumstances. An appeal from a decision of the TTAB in such a proceeding was recently decided by this court. See The Jim Dandy Company v. Martha White Foods, Inc., Patent Appeal No. 8662, decided May 11, 1972. While I also recognize that recent Patent Office rule changes, to which I alluded in my concurring opinion in Jim Dandy, reflect a current Patent Office policy of avoiding trademark interferences, these rule changes were not in effect at the time the applications of the parties here involved were copending. The declaration of the interference in the Jim Dandy case was dated November 9, 1967, more than a year after the issuance of the present appellant’s registration.
The fact remains that an interference was not declared in the present case, and this court may neither do so nor direct that such be done. However, my resolution of the controversy before us is aided by a con-si deration of what would have been the result had an interference been declared. Appellee, having the later filing date, would have been in the *1137position of the junior party, and conversely, appellant would have been put in the position of senior party by virtue of its earlier filing date. The burden would have been on the junior party, appellee, to prove priority of use. Appellee would have proved its use of the marks in connection with the Guam installations in June of 1965, a date which is earlier than that alleged by appellant to be its date of first use, September 3,1965. Given that showing, appellee would have prevailed in this hypothetical trademark interference unless appellant would have alleged and proved an abandonment of the mark by ap-pellee in the interim between the date of the Guam use and the filing of appellee’s trademark application.
In short, it seems to me that had the litigants been involved in interference, the issue would have been reduced to the question of abandonment by appellee just as it does under the approach taken by Judge Rich. I agree with the board and Judge Rich that the record here does not support a holding of abandonment. I do not understand that Judge Almond is of the view that appellee has in fact abandoned its rights in the marks here involved. Whether the time period for measure of appellee’s nonuse be considered as the period June 1965 to the 1966 filing date of its application (less than a year) or June 1965 to the September 1967 date of its petition for cancellation (more than two years thereby raising a prima facie inference of abandonment), I am satisfied that the testimony adduced by appellee in this case proves it has never harbored any intent to abandon and has acted with the intent not to abandon. I am in full agreement with Judge Rich’s assessment of the record in this regard.
If the test for standing would be in this case as Judge Almond defines it, and appellee’s standing to maintain this cancellation proceeding is in truth the ultimate question before us, it would lead to the result that appellee would have prevailed had an interference been declared, as it well could have, but does not prevail as a cancellation petitioner. This result is anomolous simply because an interference should be, and is, nothing more than concurrent oppositions or an opposition and cancellation proceeding consolidated into one action. See Jim Dandy, supra (Lane, J., concurring). It is on the basis of this equivalence that the Patent Office has sought to limit declarations of interferences and to substitute for them oppositions and cancellations. The test favored by Judge Almond as applied to the facts of this case where an application has been filed by the cancellation petitioner would undermine the well-founded Patent Office approach.
As I have indicated above, it may seem unfair to allow a party which has not been using the mark at or about the time of the filing of its petition to succeed in cancelling the registration of a party who is *1138making successful commercial use of the mark. However, when one considers that had the parties been engaged in a priority contest based on their copending applications, the so-called nonuser would have emerged with the registration without, as far I can sense, any compromise of equity or justice, the sting of the result in this case is, for me at least, substantially assuaged.
I will add that equity and justice would be best served if both appellant and appellee could ultimately secure separate registrations for essentially the same mark but as applied to the particular capacitors each is actually selling. Judge Rich reaches the truth of the matter when he states:
To say that the goods of the parties “are the same,” as appellee asserted, is somewhat like saying that toothpicks and telephone poles are the same because they are both pieces of wood.
Although as a result of the decision of the majority of this court appellant’s registration will presumably be canceled, I see nothing to bar appellant from filing an application for registration with a description of the goods to which the mark applies narrowed to comprehend only the small capacitors which it manufactures and sells. Likewise, assuming that appellee’s application has been held in abeyance pending the outcome of this appeal and presumably will be issued in due course, appellant’s description of its goods could be limited to the very large capacitors which it assembles and sells. It seems doubtful that there would be any likelihood of confusion given the actual dissimilarities between the goods. Such a solution would give the desirable result of each party enjoying the benefits of our trademark system without infringing or diminishing the rights of the other.
Eegardless of what may happen in the future, I am convinced that for the present the decision of the board must be affirmed for the reasons I have set forth.