(dissenting).
For substantially the same reasons given in my dissenting opinion in the companion case, Elgin American Manufacturing Co. v. Elizabeth Arden, Inc., 83 F.(2d) 681, 23 C.C.P.A. (Patents) —, I respectfully dissent in the instant case. As I view the marks at issue, they are not deceptively similar, and I do not regard soap and a metal receptacle for holding same as being merchandise of the same descriptive properties.
The majority opinion several times directs attention to the fact that appellee has used, or is using, its mark on refillable cartons for soaps, talcum powder, and other toilet articles. As I understand it, this fact is recited to illustrate business expansion. Since the application at issue is limited to soap, I do not think the fact so recited is of moment in determining the issue at bar. It is not inappropriate, however, to say that the record discloses that an opposition by appellant to an application by appellee to register its mark for use upon receptacles was sustained by the Examiner of Interferences, and, so far as shown, no appeal was taken from his decision. The decision was rendered May 26, 1934, in “Opposition No. 13,008,” and is included in the record presented to the court in this case.