(dissenting).
The responsibility for fixing likelihood of confusion arising from the use of similar marks in the sale of merchandise rests primarily with the Commissioner of Patents who- acts through administrative experts and assistants assigned to the respective tribunals of the Patent Office. Congress has however endowed the judiciary with a supervisory power to revise and overrule their final or concurring decision where it is manifestly wrong and the evidence to the contrary is altogether convincing. Morgan v. Daniels, 153 U.S. 120, 125, 14 S.Ct. 772, 38 L.Ed. 657; Montgomery Ward & Co. v. Sears, Roebuck & Co., 49 F.2d 842, 18 C.C.P.A., Patents, 1386; Safeway Stores v. Dunnell, 9 Cir., 172 F.2d 649, 653; Yale Electric Corporation v. Robertson, 2 Cir., 26 F.2d 972.
The record in the case at bar is wholly devoid of any circumstance which would warrant the exercise of the drastic action taken by the majority. “Sheerazair” is a bona fide compound mark1 registered in the State of New York, where appellee does business under the trade name of Sheerazair Hosiery Company. Appellee has likewise copyrighted the slogan “Wear Sheerazair” with the Library of Congress, and has registered it with the Department of State of the State of New York. Whatever protective rights appellee has thus achieved with respect to these last mentioned elements of the case need not however be here discussed.2
The law of this jurisdiction provides that trade-marks having one or more syllables in common and attached to identical goods, such as we have in the case at bar, may be confusingly similar, although there is wide difference in the remaining portions of the marks. In re Brockway Glass Company, 154 F.2d 673, 33 C.C.P.A., Patents, 969; Coty, Inc. v. Perfumes Habana, S. A., 190 F.2d 91, 38 C.C.P.A., Patents, 1180'. Moreover, while competitive marks in a proceeding like this must be considered as a whole or in their entireties with respect to sound, meaning, and appearance, substantial identity between them in any one or more of those attributes is, in and of itself, fatal to the continuance of the use of his trademark by the late-comer. Skol Company, Inc. v. Olson, 151 F.2d 200, 33 C.C.P.A., Patents, 715; Cluett, Peabody & Co., Inc., v. Wright, 46 F.2d 711, 18 C.C.P.A., Patents, 937; Traders Oil Mill Company v. Lever Brothers Company, 100 F.2d 249, 26 C.C.P.A., Patents, 899; Mason, Au & Magenheimer Co. v. Hawley & Hoops, 86 U.S.P.Q. 272; Ex parte J. H. Clarke & Co., 95 U.S.P.Q. 226.
One seeking to steal a trade-mark, or a competitor’s slogan of trade, usually incorporates some variant in the original to masquerade the piracy.3 It is properly pointed out by the Examiner of Interferences in his decision below;
“ * * * Regardless of the dissimilarities between them in other particulars, therefore, it is the opinion of the examiner that the similarities between these notations in sound are such that their concurrent use in connection with the identical item of hosiery would be quite likely to cause confusion or deception of purchasers. Cf. Marion Lambert, Inc., v. O’Connor, 86 F.2d 980, 24 C.C.P.A., Patents, 781; 477 O. G. 244; Weco Products Co. v. Milton Ray Co., 143 F.2d 985, 31 C.C.P.A., Patents, 1214, 568 O. G. 375; Hat Corporation of America v. Bry Block Mer*894cantile Corp. (53 U.S.P.Q. 647), Barbasol Co. v. Gillette Safety Razor Co. (82 U.S.P.Q. 58), R. B. Semler, Inc. v. Harris (68 U.S.P.Q. 31), and Kaylon, Inc., v. Rosenberg (78 U.S.P.Q. 209), wherein, respectively, the marks ‘Voo’ and ‘Dew’, ‘Vray’ and ‘Dr. Ray’, ‘Byron’ and ‘Bry-Ann’, ‘Barbarossa’ and ‘Barbasol’, ‘Tremolo’ and ‘Kreml’, and ‘Ballerina’ and ‘The Bambalina’ were held to be confusingly similar.”
The examiner might have gone further, as was done by Judge Faris of the United States District Court in Standard Oil Co. v. Michie, 34 F.2d 802, 804, and likewise remarked:
“Cases of this sort, in addition to those above cited, can be cited by the dozens. So far have the courts gone upon the point as to lay down the rule that ‘there must be such á wide distinction between the dissimilar words as to prevent any possibility of confusion in the use of the marks.’ Lowney Co. v. Chandler & Rudd Co., supra.4 Even if there shall exist a doubt, that doubt will be resolved against him who is last in the field. Postum Cereal Co. v. Farmers’, etc., Ass’n, supra.5”
The Assistant Commissioner of Patents in declining to reverse the examiner’s decision hereinbefore set forth disclosed an informed judgment when he expressed the following conclusion:
“ * * * Obviously the two marks are entirely different in significance, but I am not satisfied that the same may be' said with regard to appearance and sound. In regard to similarity in sound, the most important factor to be considered here, the examiner felt * * * would amount to but little more than the relatively small difference presented by the respective concluding portions ‘zade’ and ‘zair.’ * * * It is true that respondent’s mark “Scheherazade” contains more syllables than does the petitioner’s mark as is apparent when the word is correctly pronounced by those informed persons who not only know and practice the precise pronunciation of respondent’s mark ‘Scheherazade,’ but who are equally aware of its meaning as well. However, while the purchase of women’s hosiery is a matter usually involving some degree of discrimination, yet sales are not confined to those who are well informed on the pronunciation of uncommon words. * * *»
There is no obligation imposed by law, as Justice Robb noted, which requires that marks attached to identical goods “be examined with a miscroscope to detect the minute differences” between a well-known brand and a phony trade-mark. Guggenheim v. Cantrell & Cochrane, 56 App.D.C. 100, 10 F.2d 895. Nor is it otherwise necessary, as Judge Hatfield sharply admonished in Celanese Corp. of America v. Vanity Fair Silk Mills, 47 F.2d 373, 18 C.C.P.A., Patents, 958, to resort to a study of etymology in order to avoid confusion and mistake.
Members of the bar and of various legal and trade associations are not unaware of the fact that due to a fundamental change in the prevailing philosophy of the majority, this court, in general, has now reversed its former position with respect to similar or identical trade-marks the use of which by the newcomer has been challenged as deceptive and misleading for the purpose of trading on the good will built up at great expense by the owner of the original mark in issue.
For example, the former decision of this court involving the same contested marks and the precise goods was recently reversed and overruled here by the majority because, as stated, “we are of opinion that the court arrived at an erroneous conclusion there in holding the involved marks to be so similar that confusion was likely to occur.” Merritt-Taylor, Inc. v. C. B. Shane Corp., *895195 F.2d 535, 538, 39 C.C.P.A., Patents, 916, 919.
The basic purpose of the Act of 1946, the Lanham Act, as defined by its legislative history and as noted by Judge Learned Hand in S. C. Johnson & Son v. Johnson, 2 Cir., 175 F.2d 176, 178, certiorari denied, 338 U.S. 860, 70 S.Ct. 103, 94 L.Ed. 527, is to the following effect:
“ ‘It would seem as if national legislation along national lines securing to the owners of trade-marks in interstate commerce definite rights should be enacted and should be enacted now.
“ ‘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 trade-marks 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.)”
Appellee has ibeen deprived of his property by the reversal of the concurring decisions of the tribunals of the Patent Office. The procedure here has stressed the trivial and ignored the important. The primary purpose of the law is to protect the purchasing public, and shoppers have a right to rely on standard brands and to do so free from hazards or designs laid by hucksters to trap the unwary. Coca-Cola Co. v. Koke Co., 254 U.S. 143, 41 S.Ct. 113, 65 L.Ed. 189; Mishawaka Rubber & Wollen Mfg. Co. v. S. S. Kresge Co., 316 U.S. 203, 62 S.Ct. 1022, 86 L.Ed. 1381; In re Laskin Brothers, Inc., 146 F.2d 308, 32 C.C.P.A., Patents, 820; Senate Report No. 1333, 79th Congress, 2d Session, May 14, 1946; Robert, “The New Trade-Mark Manual,” page 266.
Certiorari is not granted by the Supreme Court from judgments rendered by this court in matters relating to patents and trade-marks and there is none who can call our power to account. A bill to amend the Act of 1946 has been introduced in the Senate, however, and referred to the Committee on the Judiciary. The bill proposes a number of amendments to the Lanham Act, some formal but many effecting substantial changes. It was noted by Senator Wiley when he introduced the proposed legislation on August 6, 1951 [97 Congressional Record, page 9678] :
“* * * Four years of experience under the revised law have led trademark owners and their lawyers alike to agree upon amendatory provisions which will result in clarification, simplified administration, and substantive changes, consonant with present day commercial practices and the tenets of our jurisprudence.
“Although it is probable that some individuals may disagree with some provisions of the amendatory bill, generally speaking it represents the assent of the legal and trade associations participating in the discussions.”
In the meantime, it is my firm conviction that in the public interest, as well as by the rights of appellee defined 'by the terms of the statute, the concurring decisions of the tribunals of the Patent Office in the case at bar should be affirmed.
. See In re One Minute Washer Company, 95 F.2d 517, 25 C.C.P.A., Patents, 978.
. See Safeway Stores, Inc. v. Dunnell, 9 Cir.1949, 172 F.2d 649, 655, certiorari denied, 337 U.S. 907, 69 S.Ct. 1049, 93 L.Ed. 1719; G. H. Packwood Mfg. Co. v. Cofax Corp., 183 F.2d 196, 37 C.C.P. A., Patents, 1195, sec. 45 of the Lanham Act, 60 Stat. 445, 15 U.S.C.A. § 1051 et seq.
. See Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 608, 70 S.Ct. 854, 94 L.Ed. 1097; Cheek-Neal Coffee Co. v. Hal Dick Mfg. Co., 40 F.2d 106, 17 C.C.P.A., Patents, 1103.
. Infringement of trade-marks was present or unfair competition held to exist between “Gold Stripe” and “Gold Ribbon” in Lowney Co. v. Chandler & Rudd Co., 56 App.D.C. 248, 12 F.2d 189; and between—
. “Wheat Nuts” and “Grape Nuts” in Postum Cereal Co. v. Farmers’, etc., Ass’n, 58 App.D.C. 73, 24 F.2d 901.