(dissenting).
The merchandise for which appellee seeks to register “Surge” consists of a detergent washing powder used, among other things, for cleaning farm utensils. It is identical with merchandise for which appellant has previously used the registered mark “Surf” for almost twelve years.
The goods of both of the parties are put up in small packages and marketed at a low price to the same class of purchasers for identical purposes. Each of the contested marks is printed in boldface type. Both words are dictionary terms in common use but neither is descriptive of the goods to which it is attached.
The following pertinent observations are quoted from appellant’s brief:
“That ‘Surge’ and ‘Surf’ are in fact very closely related in signification is evident from dictionary definitions. ‘Surf’ is defined in the New Standard Dictionary [1931] as ‘The swell of the sea, that breaks upon a shore; the disturbed and surging condition of water where it meets the land.’
“In the same dictionary ‘Surge’ is defined as ‘A large swelling wave or mass of waves; a great rolling volume of water; billow; sometimes used collectively and often figuratively; as, a coast beaten by the surge * * *.’ The definitions make plain that the words describe the same things and bring to mind the same associations.”
In support of the contention that the marks so nearly resemble each other in sound and appearance that, considered as a whole, they are likely to cause confusion when concurrently used on identical merchandise, appellant asserts that “Surge” and “Surf” are each words of one syllable which start with the same three letters, “Sur,” thus forming the identical and dominating part of the two short words which cannot be otherwise than very much alike in sound and appearance.
On the arguable distinction due to the ■final “f” and “ge,” respectively, appellant correctly urges that the difference in appearance and pronunciation of the two words is so comparatively slight that the purchasing public would nowise retain the recollection thereof, particularly since both words are practical!y identical in significance. Confusing similarity of competing trade-marks attached to identical goods does not depend on the use of identical words; it is sufficient if the trademark is so like another in form, spelling, or sound that one, with no clear or definite recollection as to the real trade-mark, is likely to become confused or misled as to the origin of the goods. Northam Warren Corporation v. Universal Cosmetic Co., 7 Cir., 18 F.2d 774.
The interests of the buying public in their reliance upon brand names or marks must also be taken into consideration. Mishawaka Rubber & Woolen 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; Sunbeam Furniture Corp. v. Sunbeam Corp, 9 Cir., 191 F.2d 141.
It is my opinion that in the case at bar the marks are obviously confusingly similar and the applicant from the outset of the use of “Surge” for a detergent, beginning as late as June 20, 1947, has been in a position to benefit by appellant’s extensive advertising, if it has not virtually done so, with respect to the mark “Surf.”
The tribunals of the Patent Office in reaching their final conclusion that no confusion would likely result from the concurrent use of the marks on identical goods relied on the alleged fact that because appellee’s detergent has been sold in the past to dairy farmers through applicant’s *536dealers, such dealers are to constitute the only channel of distribution for the goods in the future, and the sale thereof is to be restricted solely to dairy farmers. There is no merit whatever in that proposition. In the first place there is no evidence of record that such dealers have not also sold and delivered appellant’s “Surf” to dairy farmers who have used appellee’s milking machines and other mechanical equipment. Secondly, appellee is nowise restricted to sell its goods exclusively to dairy farmers nor to maintain its present trade practices. Celanese Corp. of America v. E. I. DuPont De Nemours & Co., 154 F.2d 143, 33 C.C.P.A., Patents, 857. Nor is there any evidence that appellee at will may not or will not wholly dispose of its subsidiary organization and the trade-mark “Surge” with which that business is identified.
For the reasons hereinbefore stated, the decision of the Acting Commissioner of Patents should be reversed.