General Cable Corporation v. Republic Wire and Cable Corporation

SMITH, Judge

(concurring).

The majority opinion supports its af-firmance of the Trademark Trial and Appeal Board for a number of stated reasons. I am satisfied, in reaching the same result, to do so simply by a comparison of the marks in issue. This comparison indicates that the only common feature is the use of the prefix “Super.” The record discloses many marks having the identical prefix and further reveals that it is not used alone as a trademark. These factors establish that the “Super” portion of the mark per se performs no trademark function. The suffixes of the marks in issue differ from each other and when combined with the common prefix “Super” become the marks which must be considered as the entities upon which the decision must be predicated. I see no necessity for going beyond the precise language of the Trademark Trial and Appeal Board:

“ * * * Giving due consideration to the nature of the term ‘SUPER’, and considering the differences between applicant’s mark and each of opposer’s mark’s [sic] in their en-tireties, it is concluded that there is no reasonable likelihood of purchaser confusion, mistake or deception.”