(dissenting).
I respectfully dissent. I cannot agree that the district judge “ * * * [M]ade no finding that the term ‘Homemakers’ as applied to calendars had acquired a secondary meaning.”
It is apparent to me that the opinion of the majority is based largely upon the assumption that the trial judge made no finding as to secondary meaning and, therefore, the assumption is warranted that none existed.
The trial judge gave a good description of plaintiff’s calendars saying that “[T]he testimony reveals that plaintiff’s calendar featuring the word ‘Home-Makers’ consists of a careful assembly of attractive pictures, editorial material of interest to a housewife, such as recipes, household and gardening hints, convenient place for notations of telephone numbers and memoranda, budget advice and charts, and a place for the advertisement name and data.”
Plaintiff sold over 11,500,000 “HomeMakers” calendars from 1941 to 1959. In the year 1948, plaintiff sold nearly one million “Home-Makers” calendars. It was in this year that defendant began selling calendars identical in appearance and makeup with plaintiff’s calendars.
The trial court found “[T]here was testimony of several witnesses, purchasers of calendars, identifying the word ‘Home-Makers’ with plaintiff’s product * * * and that in the purchase of calendars they identified them by the name ‘Home-Makers.’ ”
*170It is true the trial court did not find in so many words that a secondary meaning attached to the word “Home-Makers” for wall calendars; but the Court did specifically find from the testimony of witnesses who were purchasers of calendars that they identified “Home-Makers” with plaintiff’s product. In my view, this sufficiently satisfies the requirements of the doctrine of secondary meaning. We reached a similar conclusion in a like situation in G. Leblanc Corporation v. H. & A. Selmer, Inc., 7 Cir., 310 F.2d 449 (1962).
I also agree with the finding of the trial court “[W]hile at first blush the word ‘Home-Makers’ in apposition to the word calendar might be deemed descriptive thereof, the Court has concluded after a careful study of the precedent, that it is not ‘descriptive in the trademark sense so as to invalidate the registration.’ ”
The district court, in a carefully considered memorandum decision on the merits of this case, found support for its holding in Independent Nail & Pack. Co. v. Stronghold Screw Prod., 7 Cir., 205 F.2d 921, 925 (1953), cert. denied, 346 U.S. 886, 74 S.Ct. 138, 98 L.Ed. 391. I think its reliance on this case was well founded. It has long been recognized as the law of this circuit and has been cited with approval many times by this and other courts. The majority opinion seeks to distinguish it from the case at bar. I cannot agree that it is distinguishable.
Finally, after seeking refuge in our holding in Wilhartz v. Turco Products, 7 Cir., 164 F.2d 731 (1947) on the issue of secondary meaning, the majority opinion notes “[Tjhere was no evidence of likelihood of confusion among the purchasing public.” The relevance of “likelihood of confusion” usually is found on issues of infringement and unfair competition. I fail to see its application to the issue of validity of plaintiff’s trademark which is the question treated in the majority opinion.
I would affirm the judgment of the district court.