(dissenting).
The mark which the Crown Company-states it has been using since 1953 and which it seeks to- register is:
One of the marks upon which the Planters Company bases its opposition is:
In a unanimous decision dismissing the opposition, the Trademark Trial and Appeal Board said:
“ * * * Considering, however, that a representation of a peanut is obviously descriptive of peanuts and products derived from peanuts, whatever goodwill attaches to op-poser’s mark must necessarily lie in its particular design rather than in a representation of a peanut per se. Opposer may not, therefore, by its prior adoption and use of a design of a humanized peanut, preclude the subsequent adoption and registration by applicant and others engaged in the sale of nuts and nut products of marks consisting of or comprising fanciful or grotesque representations of peanuts if such marks differ sufficiently from that of opposer as to avoid any likelihood of confusion in trade. See: Reddy Kilowatt, Inc. v. Mid-Carolina Electric Cooperative, Inc., et al. [240 F.2d 282] 112 USPQ 194 (CA 4, 1957); Judson Dunaway Corporation v. The Hygenic [Hygienic] Products Company; The Hygenic [Hygienic] Products Company v. Judson Dunaway Corporation [178 F.2d 461] 84 USPQ 31 (CA 1, 1949); Jantzen Knitting Mills v. West Coast Knitting Mills [46 F.2d 182] 8 USPQ 40 (CCPA, 1931); and Harad et al., doing business as Industrial Engineering Associates v. Sears, Roebuck and Company [204 F.2d 14], 97 USPQ 93 (CA 7, 1953).
“It seems clear from the above illustrations that the marks of the parties are distinctly different in every material respect and that purchasers would not be likely to attribute products sold thereunder to a single source.”
Whether the board erred in so holding is the single issue for this court to decide, and our decision is necessarily controlled by the standard Congress laid down in Section 2(d) of the Lanham Act which states:
“Sec. 2. Trademarks registrable on the principal register * * *
“No trade-mark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it—
* *- * * «• *
“(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: * *
*927I find no error in the board’s reasoning or conclusion. As between the board’s position and the criticism, levelled at it by the majority, it is no problem to choose the former over the latter.
As Judge KIRKPATRICK so clearly points out, it would be difficult to imagine two so-called humanized peanuts with less in common than is the case here. Under such circumstances it seems inescapable that the result of the reasoning of the majority, or more accurately put, the nominal majority, is to give the Planters Company a perpetual trademark monopoly domination on any and all humanized peanuts. Indeed, the majority seems to go so far as to virtually invite Planters to take over at its pleasure the mark which the Crown Company has been using since 1953 and which it seeks to register.
Although, as is generally true in trademark precedents, the cases cited by the board are not sufficiently in point to control here, it seems to me those cases give greater support to the board’s reasoning than comfort to the criticism by the majority. Nor do I find any of the decisions cited by the majority sufficiently in point to control.
The concurring opinion quite correctly concedes that the “characteristics” of the instant humanized peanuts “are very different,” yet concludes that the “concept” of humanizing a two kernel, unshelled peanut together with “exclusive” use for 37 years, are sufficient to prohibit registration of applicant’s mark.
In the first place, I am aware of no authority, statutory or otherwise, and no reason in law or logic, why a trademark monopoly should be granted on the concept of humanizing the wares one seeks to sell, and no authority is cited to support that theory. Humanizing one’s wares is as old as commerce itself and I had always thought was, or at least should be, free for all to do.
Second, nowhere in Section 2(d) does Congress mention “exclusive” or “nonexclusive” use. Even if it were a proper factor to be considered, opposer does not allege exclusive” use but only “prior and extensive use.” Thus it is understandable that opposer does not challenge applicant’s allegation that
“The representation of a peanut for wats is not capable of broad exclusive appropriation, and has been used and registered by others in different forms. * * * ” (Italics supplied.)
Concrete proof of applicant’s statement is found in Planters Nut & Chocolate Co. v. Sessions Co., Inc., 128 USPQ 345.
Applicant is clearly entitled to the registration it seeks. The decision of the board should be affirmed.