(dissenting).
The majority has no basis for disparaging the opinion for the court in National Distillers as that of a “nominal” majority. The majority in that case consisted of Judge Smith, who wrote the opinion, Judge Kirkpatrick, who joined it, and myself.1 I have just reread my concurring opinion of six years ago and there is not a word in it in conflict with Judge Smith’s opinion with which I then fully agreed, as I do now. My only purpose in writing a concurring opinion was, as I stated, to examine the Patent Office Solicitor’s concepts, as there stated in his brief, about the Patent Office duty to protect the public by refusing registrations and to show that this not only does not protect the public but actually interferes with the normal protection of the public through the enforcement of private rights.
The same reasoning, some of which appellant quotes in its brief, is equally applicable here.
Lest I again be relegated to a nonparticipating status for lack of an explicit statement, I declare by present full agreement with Judge Smith’s dissenting opinion herein.
In no event can I subscribe to an opinion which speaks of “expressly” overruling a prior decision of this court on a hypothetical or “if” basis that it may contain “language” “intimating” something or other. We know what is in our opinions. We can say whether or not we will or will not follow decisions as precedents. Overruling is serious business, not to be confused with distinguishing prior cases or the reasoning in prior opinions. Judge Smith has pointed out how it upsets the business community. The decision in National Distillers stands. “Overruled” is not a term to be bandied about in a casual manner.
For reasons I stated in the National Distillers case, I think we must not be so literal minded about section 2(d) of the Trademark Act of 1946 that we defeat its basic purpose, as the majority is doing here. It follows the reasoning of the board which categorized the goods of both parties as “bakery products.” To leave it at that is to leave a false impression and to ignore the evidence in the *750affidavit of Mr. Boote, the food industry expert employed by appellant, which points out the manufacturing and marketing differences respecting the fresh bakery products of the applicant and the frozen food techniques of production and distribution of the consenting registrant’s frozen fruit pies and frozen cream pies.2 It is these differences which support the affidavit form of consent (construed by the board to be a consent to both use and registration) by the owner of the reference registration in which the Vice President of that company expresses the view that confusion, deception, or mistake is unlikely.
The facts of this case are, I believe, such as to bring it clearly within the principles expressed by Judge Smith in the three-judge majority opinion in National Distillers as well as the further views of my concurring opinion therein. This calls for reversal.
. There was a lone dissent in that case, since Judge Martin did not participate, by the author of the present majority opinion.
. The description in the registration (which is not of record) appears to be “frozen fruit and cream pies,” an ambiguous statement. The record shows, however, that two kinds of pies are intended, rather than frozen fruit on the one hand and cream pies on the other. It is not dear to me that frozen pies would ordinarily be classed as “bakery products” to be obtained from a bakery. I would expect them to come from a manufacturer of frozen foods and to be found in a freezer, not with the baked goods. That is what the record shows to be the method of distribution.