(dissenting).
If appearance were the only factor to be taken into consideration in comparing the marks of competing vendors, then one glance at the graphic illustration reproduced in the prevailing opinion would be sufficient to settle this case. However, it is true, as stated in the opinion of the Examiner of Trade-Mark Interferences, “Of the several factors of appearance, sound and meaning which must be taken into account in comparing the marks, it is believed that here, as is frequently the case, appearance is of the least relative importance. Purchasers more often than not remember and call for a desired brand of goods under a convenient unitary literal symbol present in the mark under which they are sold and without regard to pictorial or other merely, subordinate matter with which it may be associated upon the goods or labels therefor. Two such symbols are present in the mark used by the applicant, namely, the separately displayed words ‘Firestone’ and ‘Air Chief’. Each of these is without more capable of identifying the goods as to source, and it is believed that whereas purchasers thereof would sometimes order applicant’s products under the word ‘Firestone’ alone, they in many instances would similarly rely wholly upon ‘Air Chief’ for this purpose. If that is so, then the presence of ‘Firestone’, the distinguishing feature of the applicant’s corporate name, as a separable feature of its composite mark would not justify any different conclusion upon the statutory question under consideration than if such feature were omitted from the mark”. Citing, Menendez v. Holt, 128 U.S. 514, 9 S.Ct. 143, 32 L.Ed. 526.
Moreover, the record discloses that the wording “Firestone Air Chief” is sometimes used by Firestone on its goods without the graphic symbol, and that the term “Air Chief” has been used also by it without either the word “Firestone” or the graphic symbol. Another factor to be considered in respect to appearance is that the merchandise of the parties, both engaged in the mail order business, is sold through *443the medium of a catalogue. Under such circumstances, customers may not be afforded an opportunity of comparing either the involved marks or the merchandise.
Firestone’s mark in its reproduction in the prevailing opinion includes the words “Air Chief,” produced in a block style of type, with the initial letter “A” outlined in the form of an inverted capital “U”. The two words are separated by the ankles of the winged figure, poised and equipped for flight, at, or near, the top of the globe. This globe, it may be noted, bears a suggestive outline of the geography of North and South America, the Gulf of Mexico, the Isthmus of Panama, and other parts of the world.
Above the head of the winged figure, and parallel to its outstretched arms and wings, the name “Firestone” is horizontally printed in bold face type, with a capital “F.” Two five point stars are placed opposite the word “Air.” As produced, the word “Firestone” might be easily overlooked by the casual observer; not only because of the comparative dimensions of the word, but also because of the dominant and attractive features with which the symbolic figure has been endowed.
Montgomery Ward’s trade-mark, “Airline” is produced as one word, with a capital “A” and underscored lower case letters. A zigzag arrow is impressed diagonally therethrough, suggestive of a flash of lightning. From the evidence, it appears that the mark more often comprises the use of a block style of type, and frequently the letter “A” is employed in the outline of an inverted capital “U”. Thus, it will be noted, that the words, “Airline” and “Air Chief,” the unitary literal symbols of the competing marks comprise but two syllables; one being seven letters in length, the other eight. The visual appearance of the first syllable of each is identical, and, when produced in a block style of type, the second syllable of each has an unusual degree of visual similarity.
Relative to sound, in pronunciation Firestone’s two words “Air” and “Chief” are neither segregated nor separately spoken. They are spoken as a single word, with the accent on the word “Air,” the same as in Montgomery Ward’s word “Airline.” Under the law, similarity of sound is of itself sufficient to constitute confusing similarity when the marks are applied, as here, to merchandise of the same descriptive properties.
The evidence discloses that Montgomery Ward advertises its goods through the medium of radio broadcasting, which involves the exercise only of sound and hearing. It is common experience, in listening to the radio, to hear an announcer urge the radio audience to purchase a sponsor’s goods, and to use the respective methods of communication in placing the order, including the use of the telephone. Under such conditions, appearance of the marks does not even enter into the transaction ; while on the other hand, the spoken word, the sound of the mark, is the only criterion employed in effecting a sale and delivery of the merchandise.
In analyzing the meaning of the marks, it will be found that this Court passed upon the features of Montgomery Ward’s mark in the case of Montgomery Ward & Co. v. Spiegel, 132 F.2d 144, 145, 30 C.C.P.A.,Patents, 721. In that case, the word “Airline” was held to be descriptive of “A straight line, as through the air; a bee line.” That definition still resides in the dictionary and is still in use to describe the shortest distance between two points, such as, “The drive carried the American lines 44 airline miles into Luzon.”
However, new entries are continually being made in the dictionary to record words that have been coined or applied with new meaning by the public to meet the needs of contemporary developments. This is true particularly in the field of air and radio, as will be noted by a comparison of current and prior editions of various dictionaries. Therefore, as pointed out in the opinion of the Commissioner of Patents in the instant case, the popular primary use and meaning of the word “Airline,” at this time, is such as is defined in Webster’s New International Dictionary, Second Edition, 1939: “Air Line. 3. Aeronautics. A. A system of transportation by aircraft, or the equipment with which the system operates. B. The company or business organization owning or operating such a system. C. The route covered.”
In applying the foregoing definition to the involved issues and in discussing the decision of this Court in Montgomery Ward & Co v. Spiegel, supra, the Commissioner of Patents correctly stated:
“Only one definition of ‘air line’ appears in the opinion, namely, ‘a straight line, as through the air; a beeline.’ Thi° definition was quoted from Webster’s New *444International Dictionary, which also defines the term as ‘a system of transportation by aircraft, or the equipment with which the system operates.’
“While its association with the particular merchandise involved would doubtless suggest othér meanings of opposer’s mark, I am clearly of the opinion that this latter definition is the one that would immediately occur to the minds of most Americans upon seeing or hearing the words ‘air line.’ The reason is that recent world events in which air transportation has played so important and so dramatic a part have made the public alertly conscious of current developments and accomplishments in connection with aircraft, and its increasingly improved adaptability to the requirements of global warfare.
“And by the same token, I think the words ‘Air Chief’ are likely to bear a very similar connotation. In the same issue of a local newspaper, for example, I find references to the ‘Chief’ of the United States Army Air Forces, the ‘Chief’ of the Imperial Air Force and the ‘Chief’ of the Mediterranean Air Command. Scarcely a day passes that does not bring stories concerning the exploits of these officers, and others similarly engaged; and presumably such stories are read by everyone who is interested in the thrilling progress of our war in the air. To a substantial majority of these readers it seems to me that the words ‘Air Chief’ would inevitably suggest some such individual, or at least would connote supremacy in relation to the operation of aircraft.”
Moreover, the term “chief,” like the terms “blue ribbon,” “gold medal,” “master,” and “guide,” may be considered also as merely self-laudatory and descriptive of the Firestone merchandise; and if the term “Chief” as used here is not suggestive of communication by air, then it belongs to that class of weak words to which the courts attribute but little trade-mark significance.
The definition of the word “Airline” adopted by this Court describes not a device, but a process of computing the distance between two points by means of an imaginary concept, such as a bee line. Because of the widespread current usage of the word “Airline,” however, the average person of today would be very apt to think of aircraft, instead of a bee, in visualizing the airline distance between two points.
It is difficult to understand how this Court holds that the case of Montgomery Ward & Co. v. Spiegel, supra, is controlling in the instant case. By its action in so doing, however, the Court in effect finds that the word “Air” is descriptive of radio and radio supplies, and the word “Airline” is not descriptive of matters relating to transportation by air, but is descriptive of the shortest distance between two points, as a straight line; a bee line.
The word radio as defined in Websters New International Dictionary, 1939, reads as follows and makes no reference to the word air: “radio a. The transmission and reception of signals by means of electric waves without a connecting wire; the use of radiotelegraphy or radiotelephony for conveying messages.”
Really what the Court has done in the instant case is to dissect the marks, the word “air” being held to be descriptive, and therefore not entitled to the monopoly that registration implies; and “The sound, appearance, and meaning of the words ‘Chief’ and ‘line’ are [held to be] wholly different — so different as to lead one away from any thought springing from the commonly used word ‘air’.”
An' examination of the record in this case makes it impossible for me to escape the conclusion that Firestone, in the adoption of its mark, intended to give it no meaning other than the suggestion of communication and transportation by air; the same suggestion as is conveyed by Montgomery Ward’s mark “Airline.” That intent is disclosed by Firestone’s use of the words “Air Chief,” and by its act in superimposing an “Air Chief,” poised and equipped for flight, from the top of the world.
Furthermore, the “Air Chief” employed in Firestone’s mark with two five-point stars, is suggestive of planets, such as Mercury; and Firestone’s winged figure is practically identical in design to the well-known design of the ancient god of commerce described in Webster’s Handbook Collegiate Dictionary, 1944, as “Mercury 2. A carrier of tidings; a messenger; a guide.”
Facts pertinent to the issues involved in this case have been agreed to by stipulation between the parties, and establish that the trade-mark “Airline” is now the property of the appellee and that the mark is, in all respects„ valid and subsisting; *445that since its adoption in 1922, appellee has produced and distributed to date at least 245,997,888 general catalogues, at a cost of more than $177,000,000, in which products in the class here involved were advertised under the name “Airline” and that the cost of advertising in its general catalogues alone of items in the class covered by appellant’s attempted registration sold by Montgomery Ward under the trade-mark “Airline” has been more than $2,000,000, in addition to advertising in its retail stores, advertising by radio and advertising by special catalogues and “flyers that appellee has sold, from the year 1926 to date, more than 3,000,000 radio receiving sets through its combined retail and mail order establishments, exclusive of other radio and sound equipment sold under the trade-mark “Airline;” that the aggregate value of the sales, of radio and items similarly classified under the trademark “Airline” from the Fall & Winter 1926-1927 catalogue to date, is more than $17,600,000; that the trade-mark “Airline” is registered not only in the United States, but also in Argentina, Belgium, Brazil, Chile, Cuba, Finland, France, Mexico, New Zealand, Palestine, Portugal, Spain, Turkey, Union of South Africa, Uruguay, Greece, Syria, and Lebanon. (Italics mine.)
In Kroger Grocery & Baking Co. v. Blue Earth Canning Co., 88 F.2d 725, 726, 24 C.C.P.A.,Patents, 1098, this Court said: “We have little sympathy with those who adopt marks having a close resemblance to the trade-marks of others, with which they are familiar, used upon goods of the same descriptive properties, evén though they be of the opinion that they are not confusingly similar. One who adopts a valid mark and establishes a large business in which the mark is used should have all doubts resolved in his favor as against newcomers in an opposition proceeding.”
In my opinion, the words “Airline” and “Air Chief” as employed in the respective marks, considered in their entirety, so nearly resemble each other in sound, appearance, and meaning as to be likely to cause confusion and mistake in the mind of the public when used concurrently by the two parties upon identical goods; and that Montgomery Ward will not only be damaged as a result of the registration of the Firestone mark, but also that Firestone will be thereby unjustly and handsomely enriched at the expense of its competí- • tor.
For the reasons stated, the decision of the Commissioner of Patents should be affirmed.