c32:No. 14120

RUSSELL, Circuit Judge
(dissenting).
In what are usually denominated Section 4915 proceedings, 15 U.S.C.A. § 1071; 35 U.S.C.A. § 63, such as the present, while the determination of the , Commissioner of Patents should be accorded weight by the Courts, still the judicial power must be exercised upon the consideration of the case presented in its entirety. The statute provides the aggrieved party the remedy of a judicial proceeding in which the question involved is to be considered de novo.
The applicant for registration of mark, complainant below and appellate here, is entitled to registration unless its proposed trademark is likely, when applied to its goods, to cause confusion and mistakes, or to deceive purchasers. The statute aims to deny registration if there is a reasonable likelihood of confusion. The statement of the trial Court herein that “I’m unable to say that such use by the plaintiff [of its proposed mark Chee.tos] is not likely to cause confusion” does not clearly find, affirmatively, a reasonable likelihood of confusion. It, therefore, may be said that we are without benefit of a precise finding by the trial Court of this essential fact. But if the two negatives can be said to constitute an affirmative, I think it clearly erroneous. It seems clear to me that when the marks “Cheerios” and “Chee.tos” are compared and tested for similarity and likelihood of confusion the difference in nature of product, sound, spelling, character of the mark, and especially and controllingly, their different and contrasting connotations is such as to render unsupportable a finding that the use of “Chee.tos” would likely cause confusion with “Cheerios.” Manifestly, both are intended to convey to prospective purchasers definite and entirely different suggestions. The one, a suggestion of cheese, even if not cheese and toast. The other, a suggestion of cheer with the added thought of a cheery greeting, — -what the dictionary terms “cheerio” as “used chiefly as a friendly greeting or leave-taking.” The idea of brightness or enlivenment and greeting is so implicit in “Cheerios” that even mispronunciation could not dissipate it. If Chee.-tos should be considered not suggestive, it is at least a coined word. In neither view-does it impinge upon “Cheerios.”
I respectfully dissent;
Rehearing denied; RUSSELL, Circuit Judge, dissenting.
. Webster’s New International Dictionary, Second Edition, (Unabridged).

Passage view · GavelSight