(dissenting).
Appellee filed in the United States Patent Office his application for registration of the notation “Skoal”, in which the letter o is larger than the other letters and surrounds a hand holding a glass of effervescent liquid. The mark is applied to “natural carbonated mineral water, in Class 45, Beverages, non-alcoholic.”
Subsequent to publication, appellant, concededly prior in use, filed its notice of opposition, relying upon its registered mark “Skol” applied to an antiseptic and germicide for the relief of skin irritations.
The allegations in the notice relate to the confusion in trade and name clauses of section 5 of the Trade-Mark Act of 1905, 15 U.S.C.A. § 85.
Both parties took testimony, and many exhibits were filed in the case.
It appears that appellee owned some wells in Macomb County, Michigan, and that many people drank the water. A certain doctor, who had been cured of ulcers of the stomach in Karlsbad, Bohemia, observed the analysis of the water and told appellee that it was very similar to that of Karlsbad, and advised him “by all means put it on the market,” and that was the reason appellee became interested in marketing the water. The water after coming from the wells is artificially carbonated, so that it is to all intents and purposes a sparkling water such as is used for beverage purposes, either by itself or with other beverages, such as alcoholic liquors, and is sold principally in saloons, and principally advertised in publications of interest to those engaged in the liquor business.
Like most natural mineral waters, it is advertised as having an anti-acid effect upon the stomach, and also like most mineral waters it is advertised in some degree as having a beneficial effect on those who are afflicted with ailments said to result from acid conditions, such as rheumatism, arthritis, etc.
In the opinion of the Examiner of Interferences the medicinal properties of appellee’s goods were no less important, he stated, than those making it suitable for use as a beverage or mixing ingredient. Therefore he concluded that many of appellee’s customers would purchase his product as a medicinal preparation for internal use, and that appellant’s externally-applied antiseptic and germicide were closely enough related in character as to possess the same descriptive properties, and that therefore the concurrent use of the marks would be likely to cause confusion. In support of his holding, the examiner cited four Patent Office decisions. The examiner further held, in effect, that appellee had appropriated appellant’s corporate name.
Upon appeal, the commissioner reversed the decision of the Examiner of Interferences, 59 U.S.P.Q. 70, 71, and from that decision this appeal was taken.
From the nature of the goods of the parties, and the record in the case, I am unable to concur in the holding of the majority that the goods of the parties ¡possess the same descriptive properties. I cannot bring myself to the belief that a natural carbonated mineral water used as a beverage, can possibly be considered as possessing the same descriptive properties as “lotion for preventing sunburn and for pro-*207(noting tanning, and for after-shaving lotion,” for “antiseptic and germicide for relief of sunburn, windburn, and chapping, for cuts, blisters, cold sores, ringworm, athlete’s foot, hives, bums, abrasions, scalds, and other skin irritations,” and for “eye glasses.” Even though appellee testified that the effect of his water was the same as that of Alka Seltzer, this to my mind clearly meant that it had anti-acid properties. Therefore, it is immaterial that the trade-marks of the parties are pronounced alike.
The case of Kroll Bros. Co. v. Rolls-Royce, Ltd., etc., 126 F.2d 495, 29 C.C.P.A., Patents, 897, has been cited as supporting appellant’s contention with respect to the alleged appropriation of its corporate name. The decision there was based largely upon that of the case of American Steel Foundries v. Robertson, Commissioner et al., 269 U.S. 372, 46 S.Ct. 160, 70 L.Ed. 317. I find nothing in either of those cases to impel me to hold here that the doctrine concerning the appropriation of corporate names announced there is applicable. We have held many times in trade-mark litigation that each case is to be decided in view of its own facts, and that precedents are not to be relied upon. “Skoal” is a dictionary word, defined by the lexicographers as an exclamation pledging health in drinking. It surely is of appropriate significance as applied to appellee’s goods. “Skol,” the dominant word of appellant’s corporate name, is merely a fanciful term. Appellee has adopted neither the corporate name nor any part thereof in his trademark. The statute prohibits the registration of a mark consisting “merely in the name of an individual, firm, corporation, or association not zaritten, printed, impressed, or woven in some particular or distinctive manner, * * * ” [emphasis added]. It is true that the names of the parties sound the same, but from the way in which the mark sought to be registered appears it clearly is printed “in [a] particular or distinctive manner.”
I do not think that in the natural or normal extension of business appellant would include a mineral water. To my mind, the business of dealing in mineral waters is totally unrelated to appellant’s business, and I do not believe that the use of appellee’s mark as applied to his goods would cause any confusion as to origin, or that appellant would be likely to suffer damage as a result of the registration of appellee’s mark.
The decision of the Commissioner of Patents should be affirmed.