(dissenting).
The paramount national interest of the purchasing public, together with appellee’s broadened private interest at home and abroad under the Act of 1946, requires the affirmance of the concurring decisions rendered by the tribunals of the Patent Office in this case, irrespective of the fact that the successful appellee there has made no appearance here1 to assert its established prior and substantive right2 against a subsequent user of the identical mark3 on goods concededly and essentially identical.
Laches may be imputed to one who had actual acknowledge of the infringement of his mark. Lantz Brothers Baking Co. v. Grandma Cake Co., etc., 161 F.2d 739, 34 C.C.P.A., Patents, 1073. Laches also may be imputed to one who had legal knowledge of facts which would lead a reasonable man to discover the infringement and stop it. As sometimes stated, legal knowledge is an essential element which must be proven by a party who seeks to charge another with laches. Standard Oil Co. of Colorado v. Standard Oil Co., 10 Cir., 72 F.2d 524, 527; 22 U.S.P.Q. 241; Ginsberg & Bros. Inc. v. Boston Maid, 85 U.S.P.Q. 430. Restatement of the Law of Torts, section 751; Robert, The New Trade-Mark Manual, pages 194—196.
Trade-mark rights, like others that rest in user, may be lost by laches, abandonment, or acquiescence, but the burden of the establishment of such a forfeiture must be specially pleaded and strictly proved by the party asserting it. E. I. Dupont De Nemours & Co. v. Celanese Corp. of America, 167 F.2d 484, 35 C.C.P.A., Patents, 1061, 3 A.L.R.2d 1213. In other words, one who relies upon laches as a ground of relief has the burden of its establishment and cannot be relieved thereof by the doctrine of constructive notice.
That doctrine as applied in Willson v. Graphol Products Co., Inc., 165 F.2d 446, 35 C.C.P.A., Patents, 857, is necessarily limited under section 22 of the Act of 1946, 15 U.S.C.A. § 1072, to the subsequent user of a previously registered trade-mark and cannot be applied for identical merchandise against the original registrant of an identical mark. As Robert, supra, correctly put it at pages 129-130:
“What does constructive notice mean, and what is its effect ? It means simply that once a mark is registered on the principal register, everyone is charged with notice of the registrant’s *672claim of ownership of the mark. It means that no claim of rights may be asserted by another if he adopted and used the mark after the registration was granted. It means that adoption and use by another after the mark is registered is an unlawful use and cannot be justified by a claim of innocence, good faith, or lack of knowledge. In short, it means that the registrant is protected from “ambush” by a subsequent user.
* * It places squarely on the shoulders of all prospective users the duty and responsibility of searching the register in the Patent Office before adopting and using a mark. * * *
% * s|i
“ * * * No right to concurrent registration may be claimed if the use does not antedate the filing date of an application by another to register it;4 and no claim of lawful use may be asserted if the use commenced after a registration of the mark was granted. ■ In the latter case, the mark was not adopted “without knowledge” because the user is charged with notice by virtue of the registration.”
Appellant stresses the importance of' its assertion that no actual confusion over a period of twenty consecutive years’ use of .the competitive marks has been shown by appellee. The tribunals of the Patent Office have correctly held, however, that no significance may be attached to that point, and evidence of actual confusion in all such cases is not required. La Touraine Coffee Co. v. Lorraine Coffee Co., 2 Cir., 157 F.2d 115. Moreover, because the public interest is involved in the issuance of patents and trade-marks, appellant may not rely upon or acquire any legal rights against the original owner of an identical mark by reason of the erroneous subsequent registration to another of the same mark or an invalid one. In re St. Paul Plydraulic Hoist Co., etc., 177 F.2d 214, 37 C.C.P.A., Patents, 751.
The pertinent fact that appellee’s mark and advertising from the outset have impressively displayed the notation “Lightnin” cleaner, appropriated by appellant, has been here ignored. Under the law, as this court has heretofore uniformly expressed it, advertising slogans, such as we have here, and such as “Good to the Last Drop-,” have been quarantined from appropriation and use by a subsequent user. Cheek-Neal Coffee Co. v. Hal Dick Mfg. Co., 40 F.2d 106, 17 C.C.P.A., Patents, 1103; G. H. Packwood Manufacturing Co. v. Cofax Corp., 183 F.2d 196, 37 C.C.P.A., Patents, 1195.
The appellant here is leaning on a weak crutch, and the able and current decisions of the tribunals of the Patent Office should be affirmed for the reasons therein stated.
. Schering & Glatz, Inc. v. Sharpe & Dohme, Inc., 146 F.2d 1019, 32 C.C.P.A., Patents, 827.
. S. C. Johnson & Son v. Johnson, 2 Cir., 175 F.2d 176. See also Mishawaka Mfg. Co. v. Kresge Co., 316 U.S. 203, 62 S.Ct. 1022, 86 L.Ed. 1381; Hanover Star Milling Co. v. Metcalf, 240 U.S. 403, 36 S.Ct. 357. 60 L.Ed. 713.
. There is no distinction in a trade-mark sense between a foreign word and its English equivalent. Heintz v. American Tire Machinery Company, 140 F.2d 1013, 31 C.C.P.A., Patents, 862; Nestle’s Milk Prod., Inc. v. Baker Import Co., Inc., 182 F.2d 193, 37 C.C.P.A., Patents, 1066; In re Maclin-Zimmer-McGill Tobacco Co., Inc., 49 App.D.C. 181, 262 F. 635.
. Section 2(d).