(dissenting).
The decision of the commissioner should be sustained. In my opinion the .respective marks should be considered as a whole. I can see no conspicuous feature in either of the marks. Certainly when they are considered as a whole with respect to their appearance, sound and meaning they differ radically. I see'no occasion to take the marks apart, and I think the rule as stated by us in the case of Norris, Inc., v. Charms Co., Patent Appeal No. 4288, 111 F.2d 479, 27 C.C.P.A., Patents, -, decided concurrently, is applicable in the instant case. In that case we said: “It is a familiar rule that in determining the similarity of trade-marks they shall be viewed as a whole. This principle is so elementary in trade-mark law as to require no citation of authority. In determining the question of similarity and the likelihood of confusion, where the goods upon which the respective marks are used are identical * *, *, the appearance of the marks, their sound and meaning are all to be taken into consideration. If any or all of these elements suggest the probability of confusion, or if there is doubt on the question, the newcomer’s mark is not entitled to registration.”
The commissioner, in his decision, with respect to the word “roses” alone being used in calling for the goods of appellant, in my opinion, reasoned correctly as follows :
“Opposer points out that its ‘Four Roses’ whiskey is often referred to by the single word ‘Roses;’ but no claim is made that this word alone has ever been used by opposer as a trade-mark, or in a manner analagous thereto. Moreover the word does not occur in applicant’s mark, nor is there anything in the record to indicate that applicant’s similar word, ‘Rose,’ is ever used alone; and the presumption is that it will be used only in association with the equally prominent word, ‘Maryland.’ See Lucien Lelong, Inc. v. Elgin American Manufacturing Co., 83 F.2d 690, 691, 23 C.C.P.A. 1139, where the court said:
“ ‘But we cannot presume that the parties will use a part of their registered marks only, or that they will willfully indulge in practices which are subversive of the rights of some other registrant. The marks, so far as this court is concerned, must be taken as they are registered, with the presumption that the parties will use the marks as registered.’ ”
In passing, it is not amiss to observe that consumers who are careful and discriminating enough to purchase whiskey by brand or name know exactly what they wish to buy and see to it that they get what they ask for.