(dissenting).
It seems reasonable to conclude that when marks so similar as those here are applied to substantially the same goods, sold through the same over-the-counter channels of trade to the same class of purchasers, there would be a certain likelihood of confusion in the mind of the average purchaser. At least I feel we are obliged to resolve doubt on that score in favor of the registrant and against the newcomer. United States Time Corp. v. Jacob Tennenbaum, 267 F.2d 327, 46 CCPA 895.
If the score of third party marks considered by the majority serve any purpose in this contest between “M-A” and “M-O” alone, they reflect an already present state of confusion in this particular market place. Yet we add more.
Such a result would be avoided by adhering to the sound doctrine established over thirty years ago,1 where this court refused to consider some one hundred third party registrations, saying:
“ * * * One purpose of the trademark registration law being to aid legitimate interstate and foreign commerce, it seems to us that, both in letter and spirit, it requires a *1018construction which will, to the fullest extent possible, prevent confusion, not add thereto. If by inadvertence, or acting under a mistaken construction of the statute, improper registrations have heretofore been granted, such errors are not remedied by supplementing them with still another error, and a mistake of yesterday should not constitute a precedent for the law of to-day and to-morrow.”
That was the settled law of this court for many years, supplying the certainty and stability so essential to litigants and the court alike.
During those years the court did not concern itself with marks belonging to strangers to the suit, restricting itself to the competing marks alone. Likelihood of confusion issues were determined, in the main, by comparing the marks in their entireties, including their sound, spelling, appearance and meaning ; the nature of the goods; the channels of trade; the class of purchasers for whom the goods were intended; and by following the policy of resolving doubt against the newcomer. Old fashioned tools, perhaps, but having the virtues of certainty and consistency.
It was not until a new tool in the form of third party marks was extracted from Pandora’s box 2 that uncertainty and inconsistency began replacing the status quo so long enjoyed.3 It has never been clear to me why the court felt a real need for any new tool, particularly one which our experiments with third party registrations have proven to be of such a frail and unreliable nature.
Despite my individual views regarding relevance of stranger’s marks, I have respected what I understand the majority views to be and considered them when required to do so. Candor compels me to say, however, that in no wise have they served as a useful aid. On the contrary, they merely muddy the water and serve as stumbling blocks, helping no one, hindering all.
Even after Pandora incautiously released all the evils from her box, fortunately there still remained Hope. So with me.
. Trustees for Arch Preserver Shoe Patents 6CPA 1507 (1931). v. James McCreery & Co., 49 F.2d 1068, 18
. Shoe Corp. of America v. Juvenile Shoe Corp. of America, 266 F.2d 793, 46 COPA 868 (1959).
. See Beran, Third Party Trademarks — A Factor Against Confusion, Or Just A Confusing Factor?, 55 Trademark Rep. 1 (1965).