(concurring).
While I readily agree with the result reached by the majority, I strongly disagree as to the propriety, necessity and wisdom of considering the third party registrations cited by appellee.
During the thirty years Congress has charged this court with the responsibility of construing and applying the trademark statutes it enacts, we have, with two possible exceptions, consistently held that, in cancellation and opposition proceedings, marks belonging to those not parties to the proceedings are not to be considered.
One of the early decisions, Trustees for Arch Preserver Shoe Patents v. James McCreery & Co., 49 F.2d 1068, 1070, 18 CCPA 1507, involved an opposition proceeding. This court, after refusing to consider some one hundred third party registrations said:
“We are not unmindful of the fact that, in proceedings in courts of equity relating to unfair competition and trade-mark infringement cases, the courts take cognizance of *798the situations created by numerous uses of resembling marks on similar characters of merchandise and, in adjusting the equities, give consideration to such situations. But registration is controlled solely by the statute. Section 5 of the trademark registration act of February 20, 1905 (15 U.S.C.A. § 85), provides that marks (Italics quoted.) ‘ * * * which so nearly resemble a registered or known trade-mark owned and in use by another and appropriated to merchandise of the same descriptive properties as to be likely to cause confusion or mistake in the mind of the public or to deceive purchasers shall not.be registered.’
“ * * * One purpose of the Trade-Mark Registration Law being to aid legitimate interstate and foreign commerce, it seems to us that, both in letter and spirit, it requires a construction which will, to the fullest extent possible, prevent confusion, not add thereto. If by inadvertence, or acting under a mistaken construction of the statute, improper registrations have heretofore been granted, such errors are not remedied by supplementing them with still another error, and a mistake of yesterday should not constitute a precedent for the law of to-day and to-morrow.” (Italics supplied.)
Congress has been aware of that construction and of this court’s adherence to it for many years. Yet, although the trademark statutes have been frequently amended, and in 1946 completely revised by the Lanham Act, Congress has shown no dissatisfaction with that interpretation. Thus it would appear reasonable to assume that our view has been consistent with Congressional intent, and that the doctrine of legislative ratification of judicial decisions, so deeply rooted in our law and previously followed by us, is applicable here.
As a general rule the certainty and stability of the law can best be served by adherence to established precedents unless it be clearly shown that they are wrong, or unless Congress, in its wisdom, sees fit to change the law upon which such precedents rest. Congress has not changed the law, and I would remind my colleagues that this court has always subscribed to the principle that it is incumbent upon one who challenges the correctness of prior decisions to show by clear and convincing evidence where those decisions are wrong. I respectfully suggest there is no such showing here. On the contrary, I think our prior decisions are consistent with Congressional intent; they are sound; they are fair to the litigants and public alike; and, of paramount importance, they have become settled law. Under such circumstances, I find myself in fundamental disagreement with respect to the propriety of the majority action in the wholesale reversal of those precedents.
• In my view, the necessity for the length the majority goes is not supported by the facts of record. Under our adversary system of judicial procedure it is reasonable to expect the party urging consideration of third party marks to make a real issue of their criticality to the ultimate issue for decision. The Patent Office, in conformity with our established precedents, excluded consideration of the third party marks cited by appellee. However, in the thirty-two reasons of appeal to this court the only reference to that fact is buried deep in a subparagraph of a subparagraph of one reason of appeal, being (iv) of (d) of Reason 3 (R. 232). It would appear that alleged errors seriously relied on would be more strongly urged. The rather casual and perfunctory manner of treating that matter at least suggests the lack of importance with which it is regarded. Certainly counsel advances no grounds to support reversal of our precedents. There is no doubt in my mind but what the majority could quite easily have excluded those marks and still arrive at the same result.
Aside from the above considerations, I have serious doubts as to any real evi*799dentiary value the marks belonging to others might have in determining the rights of those immediately involved in cancellation and opposition proceedings. Consideration of such marks will necessarily involve elements of such a speculative, specious and nebulous nature as'to constitute a very real danger that the parties might well receive a lesser, rather than a greater, degree of justice in the task of determining their rights.
Here the majority restricts consideration of third party marks to mere registration. However, once the door is open to that extent, will we not also be asked, and with equal logic, to consider and pass on such related issues as actual use and abandonment; unregistered, as well as registered, marks, their use and abandonment; and determine, as well, the respective burdens of proof which will necessarily be involved in such proceedings? Will not the majority view also require consideration of the marks feared in the Trustee decision which, through inadvertence or other mistake, are improperly registered? Those and other uncertainties will naturally flow from the majority’s action.
The majority appears to be influenced, unduly, I think, by the fact that other courts considered third party registrations. That is nothing new. It was recognized in the Trustee decision but did not influence the reasoning or result reached there any more than it should here. If there is any serious judicial conflict I think it would be far wiser to allow Congress to reconcile that matter than for us, especially at this late date, to arbitrarily repudiate our own decisions.
I freely confess my own guilt in allowing consideration of third party marks in our original decision, and my chief reason for favoring a reargument was to correct that inadvertence. I think it would be most unfortunate for us to fail to avail ourselves of this opportunity to correct that error rather than compound it by reversing established precedent. While I fully appreciate the laudable objectives of the majority, I am totally unable to join in reversing our precedents on the mere theory they “are not sound” or “too broad.” Quite the contrary, I am convinced we are improperly, unnecessarily, and unwisely shattering sound and established precedents, and substituting nothing but new uncertainties which will impose additional burdens and require many years of decisions by the Patent Office and this court before the same degree of justice, certainty and stability now enjoyed can be achieved.