delivered the opinion of the Court:
Appellant, Kaiserbrauerei Beck & Company, appeals from the decision of the Commissioner of Patents dismissing its opposition to the registration by appellee, S. Liebmann’s Sons Brewing Company, of the word “Imperator” as a trademark for beer.
The opposition is based upon the alleged prior use by appellant of the word “Kaiser” as a trademark for beer. The ground of opposition is that the marks are so similar as to be likely to cause confusion in trade. While it is true that a motion to dismiss should only be sustained, and the party prevented from taking testimony in support of his notice of opposition, in a clear case in which no reasonable probability exists that the conclusion would be affected by the evidence, we have no doubt in this case. The words have a philological connection, but no similarity in appearance, and, to the average person, no such meaning or association as would cause one to be mistaken for the other. Whether two marks are so similar as to be likely to create confusion is best determined by observation. As was said in Liggett & M. Tobacco Co. v. Finzer, 128 U. S. 182, 32 L. ed. 395, 9 Sup. Ct. Rep. 60 “The judgment of the eye upon the two is more satisfactory than evidence from any other source as to the possibility of parties being misled so as to take one tobacco for the other. * * * Seeing in such case is believing; existing differences being at once perceived, and remaining on the mind of the observer.”
The decision of the Commissioner of Patents is affirmed, and the clerk is directed to certify these proceedings, as by law required. Affirmed.