Plaintiff, J. R. Wood & Sons Inc., a manufacturer of wedding, engagement and other diamond rings, commenced a trademark infringement suit against Reese Jewelry Corporation, a manufacturer of the same type of rings, claiming that plaintiff’s trademark “Artcarved” was infringed by defendant’s mark “Art ^ Crest.” Although the trial court found that there was “no substantial evidence of actual confusion or of damage to plaintiff’s business” ; that “there is no evidence that defendant’s breach was wilful or intentional”; and that “defendant in good faith thought its mark was not infringing”; nevertheless the court permanently enjoined defendant from using “Art ♦ Crest.” The court decreed, however, that “damages are not warranted and plaintiff shall not *158have an accounting for damages.” Defendant appeals.
The statute (15 U.S.C.A. § 1114(1), in substance, imposes liability thereunder if any person uses a colorable imitation of any registered mark, which use “is likely to cause confusion or mistake or to deceive purchasers as to the source of origin of such goods * * * ”
Plaintiff since 1941 has used the registered trademark “Artcarved” in advertising its wedding, engagement and diamond rings. This name is also stamped on the inside of each ring. Defendant in 1948 commenced using a mark “Wedding Bells” on its rings. Later and in 1955 it used a mark “Art ♦ Crest by Wedding Bells” and stamped the words “Art ♦ Crest by W. B.” on the inside of the ring. The infringement action was instituted in 1956. The trial court directed itself to the basic issue of “whether the ordinarily prudent purchaser is likely to mistake defendant’s mark for plaintiff’s mark.” Although unfair competition was charged there was no evidence of customer confusion or palming off practices, and no judgment was entered with respect thereto.
The issue here can be narrowed further by rejecting for purposes of this appeal appellant’s argument that its trademark is really “Art ♦ Crest by Wedding Bells” instead of “Art ♦ Crest.” Therefore, the marks to be compared for likelihood of confusion are “Artcarved” and “Art ♦ Crest.”
At the outset both appellant and appellee seek to set the scope of appellate review. Appellant argues that the Court of Appeals is in as good a position as the trial judge to determine likelihood of confusion (Miles Shoes, Inc. v. R. H. Macy & Co., Inc., 2 Cir., 1952, 199 F.2d 602, certiorari denied 1953, 345 U.S. 909, 73 S.Ct. 650, 97 L.Ed. 1345; Eastern Wine Corp. v. Winslow-Warren Ltd., 2 Cir., 1943, 137 F.2d 955, certiorari denied 320 U.S. 758, 64 S.Ct. 65, 88 L.Ed. 452). Appellee contends that F.R.Civ.P. Rule 52(a), 28 U.S.C.A. gives finality to the trial court’s finding of likelihood of confusion “unless clearly erroneous.”
The decision as to infringement must, of necessity, be based primarily upon a comparison of the marks. In the absence of other determinative evidence, a question of law or at best a mixed question of law and fact is presented as to which appellate review is not foreclosed. A far more difficult problem is posed in seeking any standard for evaluating “likelihood of confusion.” The large number of decisions, some decreeing infringement,1 others non-infringement2 do not tend to reveal any dogmatic principle which can be dogmatically applied.
*159In Maternally Yours, Inc. v. Your Maternity Shop, Inc., 2 Cir., 1956, 234 F.2d 538, this court stated various factors which should be weighed in an endeavor to determine likelihood of confusion (See also Restatement of Torts § 729). Although in law the balance is never as accurate as on a chemist's scale, nevertheless this method of weighing relevant elements may well establish the equities by a sufficient preponderance.
Of the fields for inquiry there mentioned, intent to palm off, difference in geographic sales area, and actual confusion can be eliminated. There remain for consideration the degree of similarity in appearance, the nature of the words of syllables used and the degree of care which a prospective purchaser might be expected to exercise in purchasing the merchandise to which the marks apply.
“Artcarved” and “Art ♦ Crest” both use as a first syllable a word in common usage, i. e., “art.” Trademarks containing a word in the public domain are said to be less “confusingly similar if they resemble each other only by the inclusion of a word which is in the public domain.” See Goldring, Inc. v. Town-Moor, Inc., 1954, 228 F.2d 254, 255, 43 CCPA 740; Sears, Roebuck & Co. v. Hofman, Cust. & Pat.App.1958, 258 F.2d 953; Lauritzen & Co., Inc. v. Borden Co., 1956, 239 F.2d 405, 44 CCPA 720.
Appellee then dissects each mark by pointing out that the next letter of its word is “c” and that “C” is likewise the first letter of “Crest.” Close similarity of the number of letters in “carved” and "Crest” is also stressed. Such analysis is too strained. Visually and phonetically the two marks should not be susceptible of confusion. To grant to appellee the protection sought would bestow upon it a virtual monopoly of any word commencing with “art.” See Warner Bros. Co. v. Jantzen Inc., 2 Cir., 1957, 249 F.2d 353; Eastern Wine Corp. v. Winslow-Warren Ltd., supra. Such a conclusion would also have to carry the assumption that the purchasing public would believe that appellee is the source of origin of all rings advertised under, or bearing, a name so formed.
The district court properly selected the “ordinarily prudent purchaser” as the subject for protection against deception or confusion. But a prudent purchaser of what? Obviously, of wedding and diamond rings and not of general merchandise. The purchaser of a diamond ring, particularly of a wedding or engagement ring, will be most discriminating in his purchase, and make it carefully and deliberately. See Sleepmaster Products Co. v. American Auto-Felt Corp., 1957, 241 F.2d 738, 44 CCPA 784. The desire to please the recipient of the purchase, the importance of the occasion (engagement or wedding), the rather large cost, and the hoped-for permanence of the purchase, all combine to make a shopping trip for a diamond ring a memorable event for most people. If the advertising copy of “Artcarved,” appeals sufficiently to the prospective purchaser, he may ask for the product by name at a retail store. If “Art ♦ Crest” is better remembered, the purchaser may ask for it. The two words are sufficiently different in pronunciation and meaning not to be confused if the purchaser is interested in a name. Usually such purchases are made after a careful examination of the style, size, quality and price of the selection offered by the retail jeweler. Brand name probably plays a rather unimportant part in any such purchase but where it does the name is likely to be remembered, thus reducing to a minimum any likelihood of confusion. Nor is “good will” in its commonly accepted meaning a consideration because at least as to engagement and wedding rings, it is not to be expected that the purchaser, pleased with his initial purchase, will return frequently for the same brand name.
Considering the various relevant factors in addition to the lack of similarity of the trademarks, the likelihood of confusion is insufficient to sustain a finding of infringement.
*160The judgment is reversed- except insofar as it found plaintiff’s trademark valid and not abandoned and dismissed defendant’s counterclaim.
Reversed in part.
. For example:
Spice Islands Co. v. Spice Land Products, Inc., 2 Cir., 1959, 262 F.2d 356 (“Spice Land” in contrast to “Spice Islands”).
Northam Warren Corp. v. Universal Cosmetic Co., 7 Cir., 1927, 18 F.2d 774 (“Cutielean” in contrast to “Cutex”).
Gehl v. Hebe Co., 7 Cir., 1921, 276 F. 271 (“Meje” in contrast to “Hebe”).
Nu-Enamel Corp. v. Armstrong Paint & Varnish Works, 7 Cir., 1938, 95 F.2d 448 (“Nu-Enamel” in contrast to “Nu-Beauty Enamel”).
. For example:
Upjohn Co. v. Schwartz, 2 Cir., 1957, 246 F.2d 254 (“Syrocal” in contrast to “Oheracol”).
Pro-phy-lac-tic Brush Co. v. Jordan Marsh Co., 1 Cir., 1948, 165 F.2d 549 (“Jewelite” in contrast to “Gemlite”).
Rytex Oo. v. Ryan, 7 Cir., 1942, 126 F. 2d 952 (“Rytex” in contrast to “Rynart”).
Feil Co. v. John E. Robbins Co., 7 Cir., 1915, 220 F. 650 (“Sal-Vet” in contrast to “Sal Tone”).
John Morrell & Co. v. Doyle, 7 Cir., 1938, 97 F.2d 232 (“Red Heart” in contrast to “Strong Heart”).
Steem-Blectric Corp. v. Herzfeld-Phillipson Co., 7 Cir., 1940, 118 F.2d 122 (“Steem-O-Matic” in contrast to “SteemElectric”).
L. J. Mueller Furnace Co. v. United Conditioning Corp., 1955, 222 F.2d 755, 42 CCPA 932 (“Climatrol” in contrast to “Clime-matic”).
Thomas Kerfoot & Co. v. Louis E. Liggett Co., 1 Cir., 1933, 67 F.2d 214 (“Va-pure” in contrast to “Vapex”).