(dissenting in part).
I dissent from the decision of the majority in oppositions Nos. 33,410 (“Swfgro”) and 33,440 (“Swfkill”). I would sustain these oppositions and in them I would reverse the decision below. Thus, I agree with the Examiner of Interferences, who sustained these two oppositions.
It is- not often that I find myself in such complete disagreement with my colleagues as I do in this case, with respect not only to their conclusion but also the reasoning in support of it, which I consider to be untenable.
The majority agree with the Commissioner’s conclusion that the marks “Swfgro” and “Swfkill” neither look nor sound like “Swift” or “Swift’s.” I think so too, but that is not the issue here. The issue is fixed for us by the statute, section 2(d) of the Lanham Act, which prohibits registration of a mark which
“(d) consists of or comprises a mark which so resembles a mark registered in the Patent Office or a mark or trade name previously used in the United States by another and not abandoned, as to be likely, when applied, to the goods of the applicant, to cause confusion or mistake or to deceive purchasers: * * *”
[Emphasis mine.] 15 U.S.C.A. § ’ 1052(d).
It is too well settled to require citation of authority that this refers to confusion, mistake or deception as to the source or origin of the goods. The question is not whether anyone would confuse “Swfgro” or “Swfkill” with “Swift” or “Swift’s,” i. e. confuse the marks, but whether they are likely, when confronted with the marks, to be confused or deceived into, or make the mistake of, thinking that “Swfgro” or “Swfkill” are products of opposer, Swift & Company, thus creating confusion as to origin.
The record shows, not only that Swift & Company is a long-established and very well known company, distributor of many products other than the fertilizer and insecticides here involved, but also that in the period 1951-1955 Swift & Company was selling in excess of $35,000,000 worth of fertilizer, insecticides and weedicides annually under the “Swift” mark and its company name, though using in addition thereto specific marks such as “Pasturgro,” “Vigoro” and “End-O-Pest” on specific products, and that appellant’s advertising expenditures for these classes of products totaled over $8,000,000 for the period 1945-1954. The record further shows, what flows naturally from the foregoing facts, that “Swift” and “Swift’s” are very well-known marks in both rural and urban areas. I think it unquestionable that they are entitled to the protection against encroachment afforded to “strong” trademarks. Furthermore, the fact that the public is so well acquainted with “Swift” and “Swift’s” has an important bearing on likelihood of confusion as to origin.
I do not see how it can be gainsaid that “Swfgro” and “Swfkill” are word' marks. They are not initials such as “RCA” or “SKF” or numerals. They look like words. The syllables “gi-o” and “kill” are common word syllables, at least phonetically. The marks are as much word marks as many other mis*271spelled trademarks, such as “Ez Flo,” “Check-R,” “Cut-N.Saw,” “E-Z Way,” “No-D’Ka,” and “Pi-Do,” to pick a few examples at random from the digest. The public is accustomed to seeing what might be termed “crazy spelling” word marks and is quite capable of supplying the missing vowel sounds as, for example, in “Pow-R-Matic” or “Tas-T-Nut.” When a mark looks like or seems to be a word the public surely is going to try to pronounce it.
The majority says of the letters “SWF”, “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,’.” I can agree with neither of these ideas. The marks sought to be registered are simply misspelled words printed all in block letters, looking, for all practical purposes, just as they do here in print. No part of either mark contains any reference to the Southwest Fertilizer & Chemical Company, a firm domiciled in El Paso, Texas. The public viewing the marks, in the form sought to be registered, will not have all of the information that the judges of this court have and I see no reason to assume that they will have any knowledge whatever as to what the letters “SWF” stand for or why they were used in the marks. They will take the marks to be words and they will pronounce them.
The majority opinion says, “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.” This means, I suppose, that the majority see as equally probable pronunciations, to take just one of the marks, Swifkill, Swafkill, Swefkill, Swofkill and Swufkill. I think this answers the statement that there is no more reason to select “i” than any other vowel. Of course, there is a reason. The first pronunciation, which is indistinguishable from “Swift-kill,” means something and the other postulated pronunciations are meaningless. I think there is only one probable pronunciation. Furthermore, nobody suggests that “SWF” will be pronounced “as a word.” The contention is that the marks, “Swfgro” and “Swfkill” will be pronounced as words and that when they are pronounced the result will be “swift-kill” and “swift-grow,” because these sounds make sense and communicate thoughts which are relevant to the insecticide and fertilizer products, respectively.
The majority opinion rightly says that “appellee’s marks must * * * be considered in their entireties” and this is the rule I have followed. It seems to me the majority has not done so. The rule leads me to the conclusion that there is great likelihood that people seeing the marks, in their entireties, will think that Swift & Company is putting out a fertilizer which is called “swift-gro,” misspelled “Swfgro” and an insecticide called “swift-kill,” misspelled “Swfkill,” misspellings being very common in the trademark field. This will create confusion and mistake, if not deception, as to origin. I could pursue the possibilities further into the field of the spoken word, of radio, TV and orders telephoned to the local supplier by the Texas farmer. I somehow cannot imagine him asking for some of that “Southwest Fertilizer Gro” or “Southwest Fertilizer Kill,” or “Ess-double-you-eff-grow” or “Ess-dou-ble-you-eff-kill.” Neither can I imagine what the announcers on TV and radio are going to say unless it be something that sounds very like “swif-gro” or “swif-kill” and I doubt that these would be distinguishable from “Swift-Gro” and “Swift-Kill.”
I have not overlooked the fact that my reasoning proceeds from the premise that there is a likelihood people are going to pronounce appellee’s marks as “swift grow” and “swift-kill” and that these words have an ordinary meaning unrelated to Swift & Company or the trademark “Swift,” implying the swift growing of crops and the swift killing of insects. Nevertheless, these meanings in*272volve the voicing or thinking of the word “swift” and I, for one, am unable to say whether the public is going to make a mental association with the opposer or with the speed of growing or killing, or both. One seems as likely as the other. All that is necessary to require that we sustain the oppositions to these word marks is that there be likelihood of confusion. Certainty is not required. I believe such a likelihood exists.
As substantiating likelihood of confusion or mistake, appellant produced the testimony of one of its sales managers in agricultural chemicals. He testified that in the fall of 1953 or spring of 1954, travelling in the Imperial Valley of Southern California on a sales trip, on three occasions, after introducing himself to farmers as the representative of Swift & Company, selling insecticides, he had been told by the farmers that they had used Swift’s product. The record then contains this:
[The Witness:]
“I didn’t think they had, because we had not sold in that area of Imperial Valley for many years, and so I asked them if they were sure they had used our product, and they said yes.
“Mr. Irons: Will you note the objection on the record as to what the farmer said, and to his testifying as to what the farmer said?
“The Witness: They'just showed me bags, and it was not Swift & Company’s products at all; it was Southwest Fertilizer’s. It was called “Swfkil” — the ones I saw.”
The Commissioner considered this to be wholly inadmissible hearsay. The majority finds it “unnecessary to pass on that question since the testimony, even if admissible, is entitled to little weight.” As I understand this attitude it means that assuming the evidence to be admissible, it would not affect the-majority’s decision. While this evidence may not be very weighty, since the witness was an employee of opposer and there is neither documentary support nor other corroboration, I think its admissibility should have been passed on. I do not see that it is hearsay insofar as it has any bearing here. The witness was not testifying as to anything more than his own knowledge of what he heard and saw with his own ears and eyes. He said that farmers told him they had used his employer’s insecticide products and that he saw the bags in which those insecticides were contained, testifying as to what he saw on them. On the admissibility problem, the point at issue is not whether the farmers used Swift products but whether they thought they had when in fact they had not, i. e., whether they were confused. The testimony of the witness as to what he heard the farmers say and as to what he saw in the way of bags is simply testimony as to his personal observation of confusion on the part of the farmers he was talking to. Such testimony is not hearsay. It is a first-hand report of what was observed by the witness. Insofar as it is credible, it is evidence of actual confusion. Such evidence has often been admitted in trademark cases. See Proctor & Gamble Company v. J. L. Prescott Company, 3 Cir., 102 F.2d 773 and International Milling Co. v. Robin Hood Popcorn Co., 110 U.S.P.Q. 368, 370 (Com’r). This evidence is cumulative on the likelihood of confusion issue and, taken with the other points discussed above based on the marks themselves, there is a more than adequate basis for sustaining the oppositions to the registration of the marks “SWFGRO” and “SWFKILL.”