Swift & Company v. Southwest Fertilizer & Chemical Company

WORLEY, Chief Judge.

This appeal is from the decision of the Commissioner of Patents, acting through the Assistant Commissioner, 115 U.S.P.Q. 16, in four consolidated trademark oppositions. The Commissioner affirmed dismissal of two oppositions to registrations of a mark comprising “SWF” with a design wherein the letters are superimposed on a picture of an American Indian type of flint arrowhead aimed at a bullseye symbol formed from the concentric letters “CCo,” the design also including conventional parallel broken flight lines extending from the base of the arrowhead indicating travel through space toward the bullseye and being illustrated in 115 U.S.P.Q. at page 17. Registration of that mark is sought for fertilizers in Class 10 and insecticides in Class 6, in two separate applications.

The other two applications are for registration of “Swfgro,” and “Swfkill” for fertilizers and insecticides, respectively. The examiner sustained the oppositions to registration of those marks, but the Commissioner reversed, holding them to be registrable. Thus all four applications have been found allowable. Appellant asks us to reverse the decision below as to all four.

Appellant opposed registration of all of appellee’s marks on the basis of its prior use and registration of “Swift” and “Swift’s” as trademarks for numerous products, including products *269identical with those for which registration is sought by appellee, and prior use of the trade name of “Swift & Company.”

Testimony was taken by opposer in the four oppositions on a consolidated basis, appellee offering no evidence. Ap-pellee was, however, represented by counsel who cross-examined opposer’s witnesses and contested the oppositions before the Examiner of Interferences and the Commissioner. On this appeal ap-pellee has neither appeared nor filed a brief.

Appellant is an established national distributor of, among other things, fertilizers, insecticides, and weedicides. It uses the marks “Swift” and “Swift’s” and the trade name “Swift & Company,” also specific trademarks on specific products such as “Pasturgro,” “Vigoro” and “End-O-Pest,” the evidence indicating that the word “Swift’s” is emphasized. As is generally known, “Swift” and “Swift’s” are used on a large variety of products in addition to those directly involved in the instant applications.

Since there is no question as to priority or similarity of the goods, the only issue is whether concurrent use of the marks would be likely to cause confusion or mistake on the part of purchasers, or to deceive them, as to the source or origin of the goods within the meaning of the Lanham Act (Trademark Act of 1946), 15 U.S.C.A. § 1051 et seq.

As evidence of actual confusion between the instant marks, appellant offered the testimony of an employee, one Bruington, who testified that on three occasions farmers told him that they had purchased Swift & Company products, and showed him Southwest Fertilizer bags as being those in which that product was purchased. That evidence was held below to be inadmissible as hearsay. Appellant disputes that holding. However, in our opinion it is unnecessary to pass on that question since the testimony, even if admissible, is entitled to little weight, as reflected by the following cross-examination:

XQ32. Your testimony with respect to the belief of these farmers with respect to the Southwest Fertilizer & Chemical Company product is based solely on your present recollection of what somebody, whose name you don’t remember, said to you in 1953 or 1954, is that correct? A. That is correct.

Considering first the marks “Swfgro” and “Swfkill,” we agree with appellant that “kill” and “gro” are descriptive or, at least, suggestive of the goods on which the marks are used. We are unable to agree, however, that the letters “SWF” are substantially identical with “Swift” in appearance or sound, and certainly not in meaning. While it is true that the letters “SWF” appear in the word “Swift,” they do not, standing alone, constitute a word, and there seems to be no good reason for regarding them as a word or attempting to pronounce them. The letters appear to be taken from a part of appellee’s corporate name, i. e., “SW” for “Southwest,” and “F” for “Fertilizer.” If an attempt were made to pronounce “SWF” as a word it would be necessary to supply some vowel sound, and there is no more reason for supplying the sound of “i” than that of any other vowel. Further, appellee’s marks must, as noted by the Commissioner, be considered in their entireties, and so considered they are, in our opinion, sufficiently different from appellant’s marks to preclude any likelihood of confusion.

Our views as to the significance of the letters “SWF” in the “Swfkill” and “Swfgro” marks are generally applicable to those letters as they appear in the arrowhead mark described above. Moreover, the separate nature of the letters is accentuated in the latter mark by the presence of dashes between them and by their association with the letters “CCo.” Those also appear to be taken from appellee’s corporate name, “Southwest Fertilizer & Chemical Co.” The arrowhead background and the distinctive arrangement of the letters provide an additional significant difference over the “Swift” and “Swift’s” marks.

*270While it is always possible to point out specific similarities and differences between marks, the question whether confusion is likely to result from their concurrent use must be decided largely on the basis of opinion, depending upon consideration of all the circumstances of the particular case involved. We have given full consideration to appellant’s arguments, including its extensive use and many registrations of “Swift” and “Swift’s,” but agree with the Commissioner that none of appellee’s marks so resembles those of appellant as to.be likely to cause confusion in trade or to deceive or mislead purchasers.

The decision is affirmed.

Affirmed.