(dissenting).
The change wrought by the Trade-Mark Act of 1946 does not give to the first user of a mark a wholly unjustified power to preempt new markets. S. C. Johnson & Son v. Johnson, 2 Cir., 175 F.2d 176, certiorari denied, 338 U.S. 860, 70 S.Ct. 103, 94 L.Ed. 527. However, for a period of more than 20 years appellant has applied its mark “Cadet” not only in the sale of storage batteries but also in the concurrent sale of numerous related articles used for lighting purposes.
That fact has been explicitly eliminated from consideration by the majority, despite the stipulation of record entered into by ap-pellee before the tribunals of the Patent Office to the effect:
“2. That the Opposer is in the business of the manufacture and selling of automobile parts and accessories, automobile storage batteries, electrical automobile bulbs, distilled water for storage batteries, battery cables and connectors, flashlight batteries, dry cell batteries, electrical household light bulbs, both incandescent and flúores-*530cent types, electrical fuses, household electrical male and female plugs, household electric double plugs and light sockets, household electrical extension cords, household electrical night light assemblies, household electric iron cords, household electrical wire, * *.
“6. That the trade-mark ‘Cadet’ has been applied to, in addition to storage batteries as referred to in paragraph 5, dry cell batteries, automobile electrical bulb kits and electric automobile ■ bulbs and distilled water- for storage batteries for a date long prior to the date of use claimed by the applicant in this proceeding and that said products have been sold by the Opposer throughout the territories covered by Opposer’s retail outlet stores and affiliated stores.
“7. That ‘Cadet’ storage batteries and the products referred to in the preceding paragraph have been extensively advertised by means of billboard displays, store displays, catalogs and newspaper and radio advertising throughout the various areas of sales of Opposer’s products.” (Italics supplied.)
The interests of the purchasing public in their reliance upon brand names or marks, through caprice or otherwise, is an important factor which must be given consideration in the case at bar. Mishawaka Mfg. Co. v. S. S. Kresge Co., 316 U.S. 203, 62 S.Ct. 1022, 86 L.Ed. 1381; rehearing denied, 316 U.S. 712, 62 S.Ct. 1287, 86 L.Ed. 1777; Fed. Trade Comm. v. Algoma Lumber Co., 291 U.S. 67, 78, 290 U.S. 607, 78 L.Ed. 532; Sunbeam Furniture Corp. v. Sunbeam Corp., 9 Cir., 191 F.2d 141.
Since appellee because of its stipulation could not have been taken by surprise before the tribunals of the Patent Office, and since in an opposition proceeding the function of the notice of opposition nowise requires the opposer to set forth therein the details of the proof relied upon, the ruling of the majority on the point in question appears to me to be erroneous. Tidy-House Paper Products, Inc. v. Tidy House Products Co., 189 F.2d 280, 38 C.C.P.A., Patents, 1099; Sparklets Corporation v. Walter Kidde Sales Co., 104 F.2d 396, 26 C.C.P.A., Patents, 1342; Coschocton Glove Co. v. Buckeye Glove Co., 90 F.2d 660, 24 C.C.P.A., Patents, 1338.
Such action by the majority has resulted not only in the blackout of an essential issue before this court but also will result in a judgment injurious to appellant and the paramount public interest. In that connection it is noted appellee concedes in its brief that “an electric lighting fixture has for its function the provision of a suitable housing for a light bulb and the control of illumination.”
The majority opinion discusses the point that the term “same descriptive properties” of section 5 of the Act of 1905 has been omitted from section 2 of the Act of 1946. No authority has been cited, and there is none as far as I am aware, which holds that the omission was intended to relax and not to tighten or broaden the protection at home and abroad1 to be afforded a trade-mark previously owned and unaban-doned. On the contrary, as Judge Learned Hand pointed out in Johnson & Son, supra, the Act of 1946 put the federal trade-mark law on a new basis, created a new substantive right in an existing mark, and, as stated in the report of the Senate Committee:
“There can be no doubt under the recent decisions of the Supreme Court of the constitutionality of a national act giving substantive as distinguished from merely procedural rights' in trademarks in commerce * * * and * * * a sound public policy requires that trade-marks should receive nationally the greatest protection that can be given them.” U.S.Code Congressional Service, 79th Congress, Second Session, 1946, p. 1277.
In Yale Electric Corporation v. Robertson, 2 Cir., 26 F.2d 972, 973, the court raised the question as to “What harm did it do a chewing gum maker to have an ironmonger use his trade-mark?” In L. E. Waterman Co. v. Gordon, 2 Cir., 72 F.2d 272, 273, the same court made the further *531observation that “It would be hard, for example, for the seller of a steam shovel to find ground for complaint in the use of his trade-mark on a lipstick.” Such logic disposes of the need for the term “goods of the same descriptive properties.” Such goods are so foreign in their competitive use that no confusion under a similar mark would be likely to arise. However, the same court also held that there would be likelihood of confusion if the mark “Yale” were used on flashlights and batteries in view of the previous use of the identical mark by the opposer on locks and keys. See also Greyhound Corp. v. Robinson Houchin Corp., 89 U.S.P.Q. 621.
Undue emphasis has been placed in this proceeding, in my opinion, on the method by which appellee has distributed its goods. As stated in the recent case of In re Fleet-Wing Corp., 188 F.2d 476, 478, 38 C.C.P.A., Patents, 1039:
“The emphasis placed * * * on the environment of sales is not appropriate because the application for registration does not limit sales in any particular manner or to any particular stores or stations and it is well established that sales methods are subject to change at any time.”
For the reasons stated, the decision of the Acting Commissioner of. Patents should be reversed.
. Bacardi Corp. v. Domenech, 311 Ü.S. 150, 61 S.Ct. 219, 85 L.Ed. 98.