(dissenting).
Sheerazair and Scheherazade, the two-trade marks involved, are in my opinion, confusingly similar and consequently I must dissent from the findings of the majority to the contrary. As pointed out by the majority, appellant’s mark is a five syllable word pronounced “Sche her a za de”' with the principal accent on “z-a” and the secondary accent on “her,” while appellee’smark is a three syllable word apparently intended to be pronounced “Sheer -as air,” and it thus seemed to the majority that there must be a considerable mispronunciation of appellant’s mark to produce a confusing resemblance in sound.
That, in my opinion, is wherein the major difficulty lies as the likelihood of mispronunciation is manifest. This conclusion was given — deservedly so — considerable weight by the Assistant Commissioner *896in affirming the findings of the Examiner of Interferences that the words were confusingly similar. As a practical matter, relatively few purchasers exercise precision pronunciation, and it is thought that the first two syllables, “Scheher” in Scheherazade, almost identical with Sheerazair, would be afforded primary emphasis with but little significance attached to the remaining portion of the word. The end result is confusion in trade, as to the origin ■of the merchandise purchased.
In the very recent case of Miles Shoes, Inc., v. R. H. Macy & Co., 2 Cir., 199 F.2d 602, 603, decided November 3, 1952 (opinion by Judge Augustus Hand), the court was concerned with the trade marks “GRO-PALS” and “GRO (representation of a tree) SHOE” as applied, to shoes and hosiery. The plaintiff’s ‘‘GROPALS” mark was adopted in 1945, whereas the defendant, R. H. Macy & Company, had long previously used its mark. Holding that the marks were confusingly similar, Judge Hand, speaking for the court, said:
“* * * While it might be unlikely that a customer would confuse Macy’s store with Miles, confusion as to whether the same manufacturer had made the goods seems to us likely. * * *
“ * * * While the visual similarity between ‘MILES GROPALS’ and ‘GRO (representation of a tree) SHOE’ in itself might not be confusing, the fact that the goods on which the marks are affixed are identical, together with the additional fact that the two words are closely alike in sound, make confusion likely. * * * Why it should have chosen a mark that had long been employed by Macy and had 'become known to the trade instead of adopting some other means to identify its goods is hard to see unless there was a deliberate purpose to obtain some advantage from the trade which Macy had built up.”
The sound reasoning expounded by that court should be applied with equal vigor to the facts in the instant case. For the reasons herein expressed, I believe the decision below should be affirmed.