Applied Research and Development Corporation v. Lily-Tulip Cup Corporation

371 F.2d 895, 54 C.C.P.A. 1025

• Court: Court of Customs and Patent Appeals
• Decided: February 9, 1967
• Docket: Patent Appeal 7753
• Status: Published

Opinions

WORLEY, Chief Judge.

Applied Research seeks registration of “China-Foam” for use on plastic dishes, bowls, plates and cups. Lily-Tulip opposes on its prior use and registration of “China-Cote” for paper containers and cups. The Trademark Trial and Appeal Board, one member dissenting, concluded there would be a likelihood of confusion between the competing marks and sustained the opposition, 145 USPQ 504.

From our review of the record and briefs we are inclined to agree with the board, at least we feel this record entitles doubt on that score to be resolved in favor of the first user.

Although the goods are not identical in material or construction, there can be no doubt that they are competitive. Although some of the common purchasers, e. g., vending machine operators, might well be termed discriminating buyers, the competing goods are, as the board points out, also sold to the general public. We are not dealing here with such diverse products as, for example, broomsticks and lipsticks, but with articles designed to serve the same purposes. While it is true that “Cote” and “Foam” are quite distinct, still when they are coupled with “China” and viewed in their entirety, as they must be, on goods with so many other things in common, we are inclined to agree that the average purchaser of the instant goods would be likely to assume the products emanated from the same source. •

We are familiar with the decisions cited and relied on by both parties, but again point out that precedents in trademark cases are of little value when different facts and marks are involved.

The decision is affirmed.

Affirmed.