On October 15, 1945, appellee filed its application, Serial No. 489,982, to register its trade-mark “Plastron,” as applied to-shower curtains made from plastic film. The mark was passed for publication and appeared as such in the Official Gazette of the United States Patent Office on February 5, 1946. On March 1, 1946 appellant filed its notice of opposition to the registration of the said mark, alleging that it would be damaged by such registration. On May 10, 1946 appellee, in its answer,, traversed the allegations of appellant’s notice of appeal and also set out an affirmative defense.
In the notice of opposition, the allegations therein relate entirely to the confusion *111in trade clause of Section 5 of the TradeMark Act of 1905, 33 Stat. 724, 725, as the statutory ground for negativing the right of appellee to register its mark.
Appellant relied upon its trade-mark “Plaskon,” which was registered in Registration Nos. 201,254; 323,067; 328.094 and 397,061, dated February 2, 1932, April 2, 1935, September 17, 1935 and August 18, 1942, respectively.
The earliest of.those registrations was for “Syntheticheat hardening molding material for use in molding artificial resinous products”; the second for “Condensation products of ureas and aldehydes”; the third for “Formed artificial resin for use as construction material for casings”; and the fourth for “Synthetic resinous compositions for use as ingredients in the manufacture of lacquers, enamels, and finishes.” . It appears that appellee is a • fabricator and distributor of articles made from plastic film, among which are “Fabric by the yard,” “Shower Curtains,” “Jumbo Garment Bags,” “Garment Bags,”. “Linen Bags,”, “Blanket Bags,” “Laundry Bags,” “Lingerie Bags and sets,” “Shoulder Covers,” “Make-up Capes,” “Shelf Edgings,” ■“Pillow Covers,” “Aprons,” and “Costume Bags.”
Both parties took testimony and there are many paper exhibits in evidence, including advertisements of plastic articles appearing in magazines, and newspapers. .
For the reason that the examiner determined that the goods of the parties did not possess the same descriptive properties, he deemed it unnecessary to pass upon the question of .whether or not the marks of the parties are deceptively similar. Holding that the respective products, do not possess the same descriptive properties within the meaning ^ of -the statute for the reason that they relate to descriptively different fields of trade, the. Examiner of Interferences dismissed the notice of opposition and adjudged that appellee is entitled to the registration for which it made application.
Upon appeal the Commissioner of Patents affirmed the' decision of the Examiner of Interferences in all respects. 78 U.S P.Q. 46. From the commissioner’s decision this appeal was taken.
Appellant is concerned with the manufacture and sale of plastic .compositions of synthetic resins and plastic materials, including, as appears in the notice of opposition, coating compounds and impregnating compositions of urea formaldehyde and other types, as well as adhesives and molding compounds, all of which, it is alleged, aré widely known in the resin and plastic industries. It appeared from the testimony, in addition to those materials, that appellant manufactures and sells melamine formaldehyde industrial resins, phenol formaldehyde glues, polyester impregnating and laminating resins, and urea formaldehyde impregnating and laminating resins. The use by appellant of its mark antedates by many years the first date alleged by appellee.
All of the plastic products of appellant set out herein are rawj or partially prepared materials which have many diversified commercial uses. The synthetic resinous materials of appellant are sold in bulk to manufacturérs for use in the fabrication of many articles of merchandise. such as “airplane seats; fly rods; lamp shades; decorative sheeting and table tops, impregnated table tops, and honeycomb.” It appears that it supplies colored plastic material to be used by manufacturers in making “various 'types of parts or. finished pieces, such as clock pieces, water tumblers, buttons,' electrical parts, radio housings, gadgets of all kinds * * ' ■
■ Appellant’s products which are in powdered or liquid form are sold entirely to fabricators or distributors in metal or fiber drums containing from 200 pounds to 500 pounds each. It makes or sells no finished articles and its mark “Plaskon” .does. not appear .on such articles manufactured from .its products. It is said that some of the manufacturers of the finished products employ their own trade-marks and many others do not.
Appellee’s. tradé-mark is used by it both as a symbol of origin of its products and as a name,’for the film of which they are *112composed. Its products are sold to retailers for resale to housekeepers.
It does not appear that any of the plastic materials sold by appellant have ever been manufactured into shower curtains. Nor does it appear that their chemical compositions are suitable to such manufacture. As far as this record is concerned, it has never made or sold plastic film, nor shower curtains, nor does it appear that any of the customers of appellant ever manufactured shower curtains from any of the materials purchased from it.
Appellant seeks to bring itself within the exception to the general rule that raw or other basic materials of general utility in the manufacture of finished articles do not possess the same descriptive properties as the various products' for which they are adapted. In order to do so it must be shown that the properties of an article which generally govern the selection of purchasers are inherent in the particular material of which it is made. There is nothing in the record, as hereinbefore pointed out, that any of the plastic compositions manufactured by appellant is adapted for use in the manufacture of appellee’s shower curtains. Neither is there anything to indicate that the film of appellee is suitable to be used in the manufacture of any other articles than those of the kind sold by appellee.
Appellant has shown that its principal competitor manufactures plastic comr positions similar to those made and sold by appellee, as well as compositions adaptable for use as a material for shower curtains. It contends that because of such manufacture by its competitor it should be held that “it is entirely possible, in fact probable” that appellant will also manufacture and .sell shower curtains. There is nothing to show that it has any intention of so extending its business. We deem it logical to conclude, as was held by the Examiner of Interferences, that the rights of appellant cannot include a speculative future use of its mark.
For the reason that in our opinion the goods of the parties differ in their descriptive properties, we may not infer probable damage to the appellant, even though their respective marks are closely similar. Goldsmith Bros. v. Atlas Supply Co., 148 F.2d 1016, 32 C.C.P.A., Patents, 1001.
It is obvious that the market for the involved goods of the respective parties are distinctly and entirely different. They are not sold through the same outlets; the goods of appellee are ordinarily purchased by the general public, while those of appellant are bought in huge quantities and by manufacturers who in turn produce finished articles from appellant’s material, the trade-mark identity of which does not follow through to the ultimate consumer.
We have considered with care all of the contentions of appellant herein and have examined the many cases cited to sustain its contentions. In this jurisdiction, cited cases are of little assistance for the reason that each case depends entirely on its own involved facts. Therefore we deem it unnecessary to discuss any of the many authorities with respect thereto.
For the' reasons hereinbefore set out, the decision of the Commissioner of Patents is affirmed.
Affirmed.