(dissenting).
I would reverse the decision of the Trademark Trial and Appeal Board (TTAB) affirming the examiner’s ex parte refusal to register appellant’s mark because I see no likelihood of confusion, mistake, or deception within the meaning of § 2(d), 15 U.S.C. § 1052(d).
What we are dealing with here are magazine titles which, realistically, are in a somewhat different category from marks used on the usual run of manufactured products. I am aware that we said that “titles of publications must not be considered any differently than trademarks for other products” in Jenkins Publishing Co. v. Metalworking Publishing Co., 315 F.2d 955, 50 CCPA 1218 (1963), citing two earlier eases under the 1905 Trademark Act in each of which the court had made the self-evident statement that periodical publication titles must be tested as to registrability by the same statutes and rules as marks for other merchandise. Taking the statement in Jenkins in the light of what was said in the precedents on which it was based, there is nothing in the statement which is contrary to the assertion that the title of a periodical publication such as a magazine is a somewhat different animal from a trademark for, say, an electric light bulb. In the latter case a purchaser may care a lot who made the bulb — what its source is, or who is behind it, as a guaranty of quality. In the case of a magazine, its title functions much more as the name of the thing, the handle by which the purchaser gets what he wants, rather than as a symbol by which he obtains assurance as to source or sponsorship or expected quality. I doubt that purchasers of two magazines in the same field normally have any interest in whether they are published by the same or different publishers. Magazines are bought for their expected contents and their titles are the means by which the desired contents are obtained; just as one goes out to buy soap or gasoline or candy, one steps up to the magazine rack to select the Atlantic Monthly or Popular Mechanics or Playboy. Furthermore, in one way or another, periodical titles, even though registrable as trademarks, have a way of strongly suggesting their contents. The majority implies that periodical publications are no different from other merchandise but is unable to cite anything quite like them.
Since magazine purchasers are used to the idea that there is more than one magazine in the same field, perforce containing similar contents — such as Photography, Popular Photography, and Modern Photography; or Popular Mechanics, Mechanics Illustrated, and Popular Science; or True, True Story, True Secrets, True Experience, True Romance, and True Detective; or Scientific Ameri-can and American Scientist; or Women’s Circle, Lady’s Circle, and Family Circle; or House Beautiful and House & Garden; or American Home and Better Homes and Gardens; all titles of which I take judicial notice from having casually perused a couple of magazine racks available to the general public — magazine purchasers have a degree of sophistication or selection know-how which does not necessarily exist in the purchase of a can of beans or paint. They normally discriminate. Trademarks for magazines and for other periodicals do have some similarities to other trademarks, but there are nevertheless differences which must be taken into account.
Our statement in Jenkins, quoted above, is much too broad in saying that periodical publication titles must not be “considered differently” from trademarks for other products. We do not even consider all trademarks on such other products in the same way. We take all marketplace factors into consideration and we do not and never have treated trademarks for car polish and soap and similar off-the-shelf items as we treat marks for highly technical, engineer-purchased equipment costing $1,000 or more. While we do, as we must, consider all marks under the same *800statutes and rules, we always consider different situations resulting from different categories of goods “differently.” See In re E. I. Du Pont De Nemours & Co., 476 F.2d 1357 (CCPA 1973). Magazine titles certainly pertain to a special class of goods.
The two marks with which we are here concerned are:
Appellant’s Magazine Title
The Reference Magazine Title
Not only words are involved, but design as well. As magazine titles the two marks are highly distinctive in the sense of being easily distinguished. Of course the goods must be regarded as legally identical — both being magazines — but there is no parallel to be drawn here with a can of beans; the purchaser is not looking for just a magazine but for a particular magazine. He knows what he wants and he will have no trouble at all distinguishing one from the other by looking at the above marks. Even if we ignore the prominent design differences, as for example in ordering the magazine over the phone or by mail or calling for it in a library, there will be no difficulty in identification since the titles are distinctly different.
I can see no likelihood of confusion. I will not attempt to point out in detail where the majority opinion goes wrong otherwise than as I already have. Most of its discussion seems to me to be on matters which are beside the point, such as the discussion of the meanings of the words involved. I fully agree with the board in its finding as fact that
* * * when the marks here involved are considered in their entire-ties they differ in both overall sound and appearance * * * purchasers would not be likely to mistakenly purchase one magazine for the other * * *
But it went further and opined that the two marks “convey substantially the identical commercial impression.” Frankly, I don’t know what the board could have meant by that. I think the statement has no meaning in light of the board’s finding that “purchasers would not be likely to mistakenly purchase one magazine for the other.” That impression, the board said, would be enough to create a likelihood of confusion as to source. As above indicated, I think such confusion — as to source of publication— is here not a controlling consideration because the purchaser is not buying electric light bulbs or beans or a product as to which source is of any moment to him. He is after a particular literary content, a particular magazine. If people do not confuse the goods to which the marks are attached, how can there be “likelihood of confusion” resulting from that concurrent use under § 2(d)?
The majority emphasizes that there is no evidence in this case. True, appellant did not introduce evidence after filing the application, except for an affidavit of use. But the board found some evidence by which it was somewhat influenced. It apparently examined the magazines of appellant and of the registrant, from which I deduce that they are on file in the Patent and Trademark Office as specimens. On the basis of that evidence the TTAB was able to say that “the contents of the magazines are specifically different.” Appellant argues this point and I think it is not to be ignored. It is further evidence that confusion is not likely. The board found as fact “that applicant’s publication deals with military history and war games while the magazine of the registration is *801oriented to psychological warfare.” I do not see why we should not accept this fact finding even though the magazines are not in the record before us. Appellant had no reason to put them in the record; the board’s finding is in its favor. The fact finding has not been contested by the Solicitor. It is only the majority that objects that the magazines are not before us. I see no need for them in accepting an undisputed fact finding of the lower tribunal. In any event, the marks themselves are the best evidence. I therefore disagree with the statement that there is no evidence in this case.