(dissenting).
On the record here, I respectfully dissent from the conclusion of the majority and disagree with some of the reasons stated by the majority in support of that conclusion.
In order to place this appeal in its proper perspective, it should be noted that, as an appellate court, we are charged by Congress with the responsibility to “hear and determine” an appeal from a decision of the Trademark Trial and Appeal Board “on the evidence produced before the Patent Office.” The statute requires that our decision shall be confined to the points set forth in the reasons of appeal. 15 U.S.C. § 1071. We, therefore, are required to determine whether, on the record below, the board erred in affirming the examiner’s refusal to register.
To arrive at that determination, we must decide, as a matter of law, under section 2(d) of the Trademark Act of 1946 and on the basis of the record made below, whether appellant’s mark so resembles the cited registration as to be likely, when applied to the goods of the applicant, to cause confusion, or to cause mistake, or to deceive. 15 U.S.C. § 1052 (d) .
While this restatement of our responsibility under the applicable statutes is somewhat elementary, it is necessary in placing this dissent in proper perspective.
I disagree with the majority in its eroding of In re National Distillers & Chemical Corp., 297 F.2d 941, 49 CCPA 854 (1962).1 In my opinion, National Distillers is a proper statement of the law, notwithstanding footnote 1 of the majority opinion and the discussion accompanying footnotes 2 and 3 therein.
The introduction to section 2 of the Trademark Act of 1946 states that “No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration” unless one or more of the grounds enumerated in subsections (a) through (e) are applicable. Under those provisions, the Commissioner of Patents is charged with the responsibility of refusing registration when he believes, as the arbiter of the evidence before the Patent Office, that registration is proscribed. See In re Apparel, Inc., 366 F.2d 1022, 54 CCPA 733 (1966); cf. In re Fleet-Wing Corp., 188 F.2d 476, 38 CCPA 1039 *751(1951); In re Laskin Bros., Inc., 146 F.2d 308, 32 CCPA 820 (1944).2
Here, the applicant has applied for registration of “COUNTY FAIR” for “fresh bread, cake and sweet goods, namely, cinnamon sticks, sweet rolls and assorted pastries.” [Emphasis added.] The cited registration, “COUNTY FAIR” for “frozen fruit and cream pies,” initially provides sufficient evidence to overcome the applicant’s prima facie right to registration. If the applicant had produced no additional evidence, bearing on the issue of whether confusion would be likely, the cause here would require an affirmance. But the applicant here proceeded to build a strong case from the evidentiary standpoint.3
There áre several approaches which an applicant for registration may take in seeking to overcome a refusal to register his mark based on a reference registration. Here because the marks are identical, the applicant was restricted to showing that the goods were in fact different, from which the legal conclusion under section 2(d) could be drawn that confusion was not likely. He first argued that a meaningful factual difference exists between the “frozen” character of the registrant’s goods and the “ready-baked” or “fresh” attributes of applicant’s goods. When unsupported argument on this issue proved unsuccessful, applicant provided the affidavit of Mr. Edward K. Boote, its Director of Marketing. As a factual showing of differences between fresh and frozen products, I think that the affidavit should have been given some weight.
The examiner, however, adhered to his position of refusing to register, choosing, in his final action, to ignore entirely the affidavit and its factual showing.
In a further attempt to overcome the final refusal to register, applicant produced and made of record the registrant’s consent which applicant considered to give it the right to use and register the mark in issue. The evidence as to that consent is an affidavit which states:
E. S. Hartwick, being first duly sworn, deposes and says:
1. He is Vice President of the Carnation Company, a Delaware corporation having its principal office at Carnation Building, Los Angeles, California.
2. Said Carnation Company is the owner of United States Trade-Mark Registration No. 607,398, issued June 14, 1955.
3. The said Carnation Company hereby consents, in the matter of the above-entitled trade-mark application, and otherwise, to the use by the Continental Baking Company of the trademark “COUNTY FAIR” for fresh bread, cake and sweet goods.
4. The Carnation Company, being engaged in and thoroughly familiar with the business of food production and distribution, considers said goods mentioned in paragraph 3 above to be in a different category from frozen fruit and cream pies, which are the goods mentioned in the said Registration No. 607,398, and believes that the use by Continental Baking Company to which consent is above given is in no way likely to cause confusion or mistake or to deceive. [Emphasis added.]
*752Appellant argued that all of the evidence of record brought the case within the holding of National Distillers, supra. I agree.
In National Distillers, we found differences in the goods and differences in the marks. We said, 297 F.2d at 943, 49 CCPA at 856:
We shall first consider whether the differences in the marks and in the goods are such that confusion or mistake or deception of purchasers is likely. The marks MARQUÉS DEL MÉRITO and MERITO do not look alike, sound alike nor evoke the same psychological responses. Wines and rum are goods whose differences are clearly recognized by the purchasers thereof. These differences are sufficient to raise a doubt as to likelihood of confusion, mistake or deception of purchasers arising from the common use of the word MERITO. Under these circumstances, we think the alleged agreements between applicant and the owner of the reference registration are of evidentiary value. [Emphasis added.]
I disagree with the majority that National Distillers stands for any such narrow proposition as it extracts from the opinion to state:
To hold that the present consent to register should control would be to allow individuals to take the law in their own hands, thus usurping the responsibility that Congress has placed in the Patent Office. Should there be any language in National Distillers intimating that individuals have such rights regarding registration of trademarks, then to that extent that decision is hereby expressly overruled.
While consents to register cannot control in all instances, they definitely should be “of evidentiary value” as bearing on the factual basis for supporting a legal conclusion as to likelihood of confusion. We here should be concerned with the legal sufficiency of all of applicant’s proofs (including the consent) and nothing more and base our determination solely upon their sufficiency to support the legal conclusions required by the statute.
In In re Wilson Jones Company, 337 F.2d 670, 52 CCPA 805 (1964) we referred to consents to register as having an “important persuasive effect in determining registrability.” However, we there considered proof of a mere right to use as not being sufficient to control on the issue of likelihood of confusion.4 This decision is in accord with National Distillers, in considering the agreements between the parties as relevant evidence. As such, it is at odds with the majority here, for as I see it, the majority is unwilling to accord any evidentiary weight to the agreement between the prior registrant and the applicant on the issue of likelihood of confusion.
Certainly, where, as here, the facts of record support a finding of doubt as to likelihood of confusion, any properly admissible statement from the registrant asserting a belief that confusion is not likely, may well have the “important persuasive effect” to convince us to conclude, as a matter of law, that confusion is not likely. As evidence on that issue, it must be considered.
Thus, I believe that the majority decision here is not based on a logical interpretation of National Distillers. Though the marks here are identical, applicant’s proofs raise a substantial *753doubt as to whether confusion would be likely. The consent filed by the registrant is sufficient additional evidence to tip the scales in favor of registration.
I also disagree with the approach of the majority in “overruling” language in National Distillers, if it is there at. all. As a court, we ought to strive for clarity and stability in the law, especially so where our opinions are looked to as a guide for the actions of an administrative body, applicants for registrations, their lawyers, businessmen and other courts, cf. Field Enterprises Educational Corp. v. Grosset and Dunlap, Inc., 256 F.Supp. 382 (S.D.N.Y.1966). The legal propositions supporting National Distillers are clear; they were made clearer in Wilson Jones. The action of the majority here is a regression from the broad intent of Congress in enacting the Trademark Act of 1946 for the purpose of bringing stability into the Federal trademark law. At best, the present majority opinion will cause considerable uncertainty as to the evidentiary proofs required to support a right to register where relative certainty previously prevailed.
A review of the case law, particularly opinions of the board, indicates that consents to register are quite commonly presented, are considered as relevant evidence, but are not always persuasive as to a right to register a trademark. This is as it should be. A list of some of these decisions appears in the Appendix A to this opinion. Consents to use a registered trademark given by the owners of such registrations must be presumed to be the acts of reasonable men who are in a better position than either examiners or judges to testify as to the factual basis for determining the issue here.
Mindful then of the impact the majority dicta is sure to have in encouraging the substitution of mere legalistic speculation for evidence of facts in such cases as the present, I find no proper purpose served in “overruling” anything in National Distillers. Indeed, as Professor Derenberg commented on National Distillers:5
Although the Chief Judge dissented, it may well be expected that under the authority of this important precedent, the Patent Office will now show greater latitude and cooperation in accepting letters of consent and will resolve any doubt in borderline situations in favor of the applicant, such as is the practices [sic] in most other countries, including Great Britain, where in situations of this sort the public record may carry a notice, “By Consent.”
Finally, similar to the situation in National Distillers, I think the agreements here relied upon by the appellant are limited to certain conditions which are expressly contained in that consent. As such, they are limited or restricted consents. Under section 1(a) (1) of the Trademark Act of 1946,15 U.S.C. § 1051, appellant should be required to state these limitations and restrictions as exceptions to a claim of an exclusive right to use. I hardly think that the registrant would permit simultaneous use of the same mark for the identical goods for which he has already obtained registration.
Thus, I would reverse the decision of the board and remand the case for further proceedings consistent with the views herein expressed.
Appendix A
Some recent decisions in which the consent of the registrant was of record and the conclusion that confusion is likely was reached: In re Robert Hall Clothes, Inc., 155 USPQ 754 (TTAB 1967); In re Electro-Voice, Inc., 148 USPQ 616 (TTAB 1966); Monarch Mufflers, Inc. v. Goerlich’s Inc., 148 USPQ 20 (TTAB 1965); In re Variety Supply Co., 137 USPQ 387 (TTAB 1963); Country Tweeds, Inc., v. Joseph & Feiss Co., 136 USPQ 314 (TTAB 1962); St. Regis Paper Co. v. Malanco, *754Inc., 136 USPQ 88 (TTAB 1962); Central West Oil Corp. v. Continental Oil Co., 135 USPQ 469 (TTAB 1962); In re W. H. Barber Oil Co., 135 USPQ 372 (TTAB 1962) (involving identical marks).
Other recent decisions in which the consent of the registrant was of record and the conclusion was reached that confusion would not be likely: In re Executone, Inc., 153 USPQ 648 (TTAB 1967) (involving identical marks); In re Transitel Corp., 149 USPQ 794 (TT AB 1966); In re A. C. Gilbert Co., 135 USPQ 38 (TTAB 1962); In re Electro-Vox, Inc., 134 USPQ 463 (TTAB 1962).
. Note, 76 Harv.L.Rev. 1691 (1963) ; see generally, Developments in the Law: Trade-Marks and Unfair Competition, 68 Harv.L.Rev. 814 (1955).
. See Derenberg, The Patent Office as Guardian of the Public Interest in TradeMark Registration Proceedings, 14 Law & Contemp.Prob. 288, 31 J.P.O.S. 647 (1949).
. In American Drill Bushing Co. v. Rockwell Mfg. Co., 342 F.2d 1019, 1021-1022, 52 CCPA 1173, 1176 (1965), this court noted:
It is fundamental, however, that identity or similarity of the marks alone is not enough to be conclusive of a likelihood of confusion. We must also consider the nature of the goods and the mark as applied thereto, the channels of trade, the class of purchasers, and other showings, such as, but not exclusively limited thereto, third party registrations, and absence of actual confusion.
. In National Distillers, the prior registrant’s consent to the applicant to use and register the mark in issue was before the court. In Wilson Jones, however, only an agreement conveying the right to use was of record. We refused to infer that the consent to use the registered mark was probative evidence on the issue of whether confusion would be likely. I regard consents to register as eviden-tiary. The consent need not, in my view, contain express language conveying a right to register, as long as the agreement, as here, contains language hearing on the factual bases necessary to determine the legal issue of likelihood of confusion.
. The Fifteenth Year of Administration of the 6, Part II, August 6, 1962. Lanham Trademark Act of 1946, 134 USPQ No.