(dissenting).
Appellant’s mark “Kalart” is arbitrary and nowise descriptive or suggestive of the goods to which it is applied. We have repeatedly held that in cases like this a greater difference is necessary, in sound, meaning and appearance, to avoid the likelihood of confusion with a mark previously owned and in use by another engaged in the sale of identical goods. See, for example, Lauritzen & Co., Inc., v. Borden Co., 239 F.2d 405, 44 C.C.P.A., Patents, 720; Smith v. Tobacco ByProducts & Chemical Corp., 243 F.2d 188, 44 C.C.P.A., Patents, 880; W. E. Kauten-berg Co. v. Ekco Products Co., 251 F.2d 628, 45 C.C.P.A., Patents, 761.
It is well settled also that similarity in sound alone is sufficient to establish the likelihood of confusion. Skol Company, Inc., v. Olson, 151 F.2d 200, 33 C.C.P.A., Patents, 715; Bordo Products Co. v. B. A. Railton Co., 173 F.2d 981, 36 C.C. P.A., Patents, 1059; Salem Commodities, Inc., v. Miami Margarine Co., 244 F.2d 729, 44 C.C.P.A., Patents, 932.
There is not the slightest doubt that “Cam,” the first and accented syllable of the appellee’s mark, “Camart,” is pronounced as cam in “camera,” with a short “a” while the “c” therein is a hard “c,” which must be, and universally is, pronounced with the identical sound of “K,” the same as the initial letter “k” in appellant’s mark.
One of the appellee’s witnesses testified that he had always heard “Kal,” the initial syllable of appellant’s mark, pronounced with a broad “a” as in “rate” or “fate.” The record has nowise established, however, that any such pronunciation is dominant or generally applied. It is logical, to say the least, to give the “a” in both marks the short pronunciation, by analogy, to such words as “Kalmuck,” “Kalmia,” and “Kalamazoo.” Moreover, it is a common practice to use the hard “c” in place of the letter “k” in trademarks, tradenames, and advertising, as in “Kleenex,” “Kozy Korner” etc. Appellant in its brief explicitly admits that *958the last three letters in the respective marks are identical. That syllable is therefore given an identical pronunciation in each of the marks.
“Kalart,” which was coined in its inception, is not to be found in any of the dictionaries. The pronunciation of the term is therefore largely a matter of choice, and, so far as I can learn from the record, appellee is nowise authorized nor qualified to impose its pronunciation upon the court. It failed completely to convince the experienced and able Examiner of Trade-Mark Interferences, although it prevailed before the Assistant Commissioner of Patents.
The only recorded difference in pronunciation between the involved marks as a unit is that which might result from the single letters “1” or “m.” Those two intermediate letters are so insignificant in these two syllable words that the letters make little distinction, if any, with respect to their sound and appearance in the mark as a whole.1 As I see it, the design of the appellee’s mark might well serve as a device to trap the unwary.
Prior decisions are of little value in deciding the multitude of cases with which the court is flooded on the issue of the confusing similarity of trade-marks. But it does seem appropriate that we here note certain comparable and analogous cases in which we have heretofore held contested marks to be confusingly similar, despite obvious differences which are far greater in scope than those disclosed in the instant case: Beck, Roller & Co., Inc., v. Bakelite Corp., 90 F.2d 349, 24 C.C.P.A., Patents, 1290 (Beckacite and Bakelite); Dubonnet Wine Corp. v. Ben-Burk, Inc., 121 F.2d 508, 28 C.C.P.A., Patents, 1298 (Bourbonet and Du-bonnet); McKesson & Robins, Inc., v. American Foundation, etc., 150 F.2d 420, 32 C.C.P.A., Patents, 1235 (Cytamin and Dent-a-Min).
The Supreme Court long ago held that it is the affirmative duty of the newcomer to take reasonable precautions in the selection of a mark, so as to avoid needless public confusion and private injury by the invasion of the field previously occupied by another. Waterman Co. v. Modern Pen Co., 235 U.S. 88, 94, 35 S.Ct. 91, 59 L.Ed. 142.
Another and similarly significant admonition was written by one of the distinguished judges of this court to the following effect in the case of Atlantic Seafood Packers v. Florida Fruit Can-ners, Inc., 166 F.2d 586, 589, 35 C.C.P.A., Patents, 985:
“A vast field of words, phrases, and symbols is open to one who wishes to select a trade-mark to distinguish his product from that of another. Unquestionably in our ever-increasing complex business life, the trend of modern judicial decisions in trade-mark matters is to show little patience with the newcomer who in adopting a mark gets into the border-line zone between an open field and one legally appropriated to another. As between a newcomer and one who by honest dealing has won favor with the public, doubts are always resolved against the former.”
I can of course nowise agree with the conclusion herein of the majority that the involved marks “neither look alike nor do they have similar meanings.” The profile of the marks is identical; they have the identical number of letters; and the last three letters thereof, being identical, are likewise so pronounced. As hereinbefore described, the marks look and sound much the same when assembled as a unit.
The public and private injury caused by the registration and contemporary use of confusingly similar marks, or use of a misspelled descriptive mark, or trade-name, does not cease to exist when the registration has been effected and the mark is applied to related goods sold in the open market. See, for example, Ar*959mour & Co. v. Organon, Inc., 245 F.2d 495, 44 C.C.P.A., Patents, 1010, 1014. Moreover, the windfall of unearned profits that frequently result from the misappropriation of marks, tradenames, etc., belonging to and in use by another, is in any number of cases of vast proportions. See Schnur & Cohan, Inc., v. Academy of Motion Picture Arts, 223 F.2d 478, 42 C.C.P.A., Patents, 963; Cohen & Sons Co., Inc., v. Hearst Magazines, Inc., 220 F.2d 763, 42 C.C.P.A., Patents, 836.
For the reasons hereinbefore stated, the decision appealed from should be reversed.
. Thymo Borine Laboratory v. Winthrop Chemical Co., Inc., 155 F.2d 402, 33 C.C.P.A., Patents, 1104.