dissenting:
I am compelled to withhold my assent to the judgment ordered in this case. I regard the conclusion as inconsistent *487with that in the recent case No. 585 [ante, 410], between the same parties, in which it was decided that the rival marks are not deceptively similar. The dissimilarity of the two marks consists in the symbols that precede and follow the word “Rogers,”—a word which each party has the right to use. When exhibited in any ordinary size, the wreath, with “R” inclosed, of one party, is quite different from the anchor of the other. When exhibited on small articles of silverware, the confusion results from the difficulty of distinguishing either symbol. It requires keen eyesight to tell that one is an anchor, and the other a wreath with “R” in it. The same confusion would result from the use of many other wholly different symbols. When used in proportionally larger size upon larger pieces of silverware, the confusion disappears.
Similarity is to be tested by actual resemblance of the distinctive features of marks, and not by indistinctness of each, caused by reduction of size in a particular application.
If, as a fact, one may have adopted the mark for use on small articles to obtain the trade of the other, it may be a matter available in- a suit for unfair competition, but not in this pro* eeeding.' ,
A rehearing, applied for by the appellant, was denied May 20, 1910, Mr. Chief Justice Shepard dissenting.