(dissenting).
I cannot agree either in the conclusion reached or the reasoning employed in the decision of the majority, for the reason, chiefly, that it peimits the registration of appellee’s trade-mark, when, to me, it is obvious that confusion, within the meaning of the trade-mark statute, will result. The opinion of the majority seems to rest chiefly upon the rights existing between the parties, and takes no consideration of the public’s rights with reference to confusion.
If the diving girl trade-mark of appellant is a valid one and entitled to registration, it would seem that appellee’s trade-mark should not be registered for use on goods of tho same descriptive properties, since the trade-marks so nearly resemble each other as to be likely to cause eonfusion or mistake in the mind of the public and will deceive purchasers. If the trade-mark of appellant is invalid, it ought not to have been registered, and of course the same applies to appellee’s trade-mark which so nearly rfesembles it.
*186Furthermore, if the reasoning employed by the majority as to the scope of protection afforded to appellant for his trade-mark is conceded, and if its validity is conceded, I would have to differ with the majority in the conclusion that “no purchaser would confuse the posture of a girl with arms and limbs extended, as in the act of diving through the air, with the posture of a girl standing on a diving board with her arms held back as if about to spring or dive into water.” The ordinary purchaser of bathing suits, seeing a diving girl, clad in a bathing suit, in the act of diving, would hardly study the exact posture of the diving girl and compare it with the posture of another similar diving girl.
The effect of the majority holding will probably be that trade-marks of many different kinds, representing diving girls, in bathing suits, in slightly different postures, will be registered, resulting in conditions which Congress sought to prevent.
HATFIELD, Associate Judge, concurs in the dissenting opinion.