BLAND, Associate Judge.
From a decision of the Commissioner of Patents, dismissing a petition for cancellation of the registration of the trade-mark “Air-O,” No. 162,625, dated December 19, 1922, issued to Denver M. Wright for belts for men’s and women’s wear, appellant has appealed to this court.
Petitioner’s petition is grounded upon the contention that appellee was not entitled to the use of his mark on the date of his application for registration for the reason that at the time of the making of said application, the petitioner, appellant herein, was the owner and user of the trade-mark “Arrow,” whieh was sometimes used in the printed form with, the pictorial representation of an arrow, and sometimes used in the printed form alone, upon various articles of wearing apparel sold chiefly in men’s furnishing stores.
The record shows that said petitioner is a New York corporation engaged in the manufacture and sale of collars and cuffs, outer shifts, including dress, négligé, ■ and work shirts, pajamas, nightshirts, undershirts, un-, d.erdrawers, union suits, handkerchiefs, neckties, fabric bathing belts, and other articles of dress and apparel; that its business was established in 1851; that its factories are located at Troy, Waterford, Schenectady, Rochester, Corinth, Nassau, Greenwich, all in New York, and at South Norwalk, Conn., Leominster, Mass., and Kitchener, Canada; that it maintains salesrooms and offices in twenty-three principal cities in this country; that its trade extends throughout this country and the principal foreign markets of the world, and that it is the largest collar and shirt manufacturer in the world; that the petitioner’s said gobds are sold and retailed in men’s furnishings stores or haberdashery shops, in department stores, and in general clothing stores; that all of petitioner’s said products are marketed under a trade-mark consisting of the word “Arrow” or of the pictorial representation of an arrow, or of said word “Arrow” associated with said pictorial representation of an arrow; that said mark has been continuously used by the petitioner and its predecessors in business since 1885 on shirts, collars, and cuffs; that its usé was extended to handkerchiefs about April, 1909, and to nightshirts, pajamas, undershirts, underdrawers, and union suits about July, 1913, and to bathing belts in November, 1926, since whieh dates said uses have been continuous; that at the time of its expansion of business to fabric bathing belts and continuously since that time, the petitioner’s said belts have been made of the regular stock of material from whieh certain of its collars have long been made and upon its regular machines used for cutting, folding, binding, and stitching collars; that the petitioner is the owner of twelve different registered trade-marks whieh registrations date from 1900 to 1925. The record further shows large expenditures of money for advertising and many other details of petitioner’s business whieh we will not set out-here. The petitioner also introduced into the record a long list of trade-mark registrations of various firms showing the line of goods or different articles of men’swearing apparel whieh were handled by such firms and covered by such registrations.
The earliest date of use claimed by appellee is in the year 1915.
The commissioner affirmed the decision of the acting examiner of interferences whose decision dismissed the petition 'for cancellation. The decision of the commissioner is to the effect that appellant did not use the “Arrow” trade-mark for belts until 1926 and that its right to extend its use of the “Arrow” mark to belts was lost due. to laches since “petitioner practically acquiesced in the exclusive use of the mark ‘Air-O’ on belts from 1915 to 1926,” and holds that it would be “inequitable” to now give appellant the exclusive use of the trade-mark “Arrow” on belts, citing Victor Stove Co. v. Hall-Neal Furnace Co., 58 App. D. C. 65, 24 F.(2d) 893, 374 O. G. 252, 18 T. M. R. 178; and France Milling Co. v. Washburn-Crosby Co. (C. C. A.) 7 F.(2d) 304.
Appellant contends that the registration of appellee’s trade-mark was not warranted in law for the reason that the marks were identical (that is, identical in sound) and the goods of appellee and the goods of appellant at the time of appellee’s registration were of the same descriptive properties; that since belts were in the same class, and closely related in their sale and use, with the articles [713]*713sold by appellant, appellant had the right to extend its business at any time to the sale of belts and use its “Arrow” trade-mark thereon ; and that the commissioner erred in holding that appellant had lost such right by laches, inasmuch as the record was barren of any evidence whatever to the effect that appellant had any notice or knowledge of any facts which might he regarded as the basis for laches.
Counsel for appellant stated in argument that appellant first sought to register its “Arrow” trade-mark for cloth belts, which registration was refused on the theory that at that time the appellee owned a registered trademark for “Air-O” on men’s and women’s belts. He further stated that appellant did not appeal from the action of the Patent Office for the reason that appellant’s counsel was of the opinion that the issue on such an appeal would involve only the similarity of the trade-marks and the descriptive properties of the goods of the respective parties; hut that after registration had been refused, he then proceeded under section 13 of the trade-mark Act of 1905 (15 USCA § 93) for cancellation, in order that appellee’s registered mark, when canceled would not be a bar to an application for registration of the trade-mark “Arrow” for cloth belts.
We think the commissioner erred in his finding:
“That the registrant’s belt does not have the same descriptive properties as any of the articles to which the petitioner appropriated its mark up to the time the registrant entered the field is evident. One wishing to purchase collars, cuffs, shirts, etc., would never be deceived into purchasing the registrant’s belt; nor would one wishing to purchase - registrant’s belts be deceived into purchasing any one of the petitioner’s articles to which it appropriated its mark prior to 1926.”
Men’s and women’s belts are of the same descriptive properties as most, if not all, of the articles of wearing apparel upon which appellant used its “Arrow” trade-mark prior to the earliest use by appellee of its registered mark. California Packing Corp. v. Tillman & Bendel, Inc., 40 F.(2d) 108, 17 C. C. P. A. 1048; B. F. Goodrich Co. v. Hockmeyer, 40 F.(2d) 99, 37 C. C. P. A. 1068; Cheek-Neal Coffee Co. v. Hal Dick Mfg. Co., 40 F.(2d) 106,17 C. C. P. A. 1103. The application for registration of appellee should have been refused since the word “Air-O” and the word “Arrow” are identical in sound, one word being a misspelling of the other. Appellee, at the time of making his application, was not the owner of the trade-mark for which registration was sought, since the same had alreadly been appropriated, used, and registered for use for goods of the same descriptive properties. In our view it should have been clear to the commissioner that confusion would result from the concurrent use of the two marks and that the appellee’s mark should not have been registered.
Upon this record, we think the commissioner erred in his holding that on account of laches appellant lost its right to extend the use of its “Arrow” trade-mark to belts. There is no such statement of facts shown herein as was involved in the two cited eases. For instance, in the France Milling Co.
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BLAND, Associate Judge.
From a decision of the Commissioner of Patents, dismissing a petition for cancellation of the registration of the trade-mark “Air-O,” No. 162,625, dated December 19, 1922, issued to Denver M. Wright for belts for men’s and women’s wear, appellant has appealed to this court.
Petitioner’s petition is grounded upon the contention that appellee was not entitled to the use of his mark on the date of his application for registration for the reason that at the time of the making of said application, the petitioner, appellant herein, was the owner and user of the trade-mark “Arrow,” whieh was sometimes used in the printed form with, the pictorial representation of an arrow, and sometimes used in the printed form alone, upon various articles of wearing apparel sold chiefly in men’s furnishing stores.
The record shows that said petitioner is a New York corporation engaged in the manufacture and sale of collars and cuffs, outer shifts, including dress, négligé, ■ and work shirts, pajamas, nightshirts, undershirts, un-, d.erdrawers, union suits, handkerchiefs, neckties, fabric bathing belts, and other articles of dress and apparel; that its business was established in 1851; that its factories are located at Troy, Waterford, Schenectady, Rochester, Corinth, Nassau, Greenwich, all in New York, and at South Norwalk, Conn., Leominster, Mass., and Kitchener, Canada; that it maintains salesrooms and offices in twenty-three principal cities in this country; that its trade extends throughout this country and the principal foreign markets of the world, and that it is the largest collar and shirt manufacturer in the world; that the petitioner’s said gobds are sold and retailed in men’s furnishings stores or haberdashery shops, in department stores, and in general clothing stores; that all of petitioner’s said products are marketed under a trade-mark consisting of the word “Arrow” or of the pictorial representation of an arrow, or of said word “Arrow” associated with said pictorial representation of an arrow; that said mark has been continuously used by the petitioner and its predecessors in business since 1885 on shirts, collars, and cuffs; that its usé was extended to handkerchiefs about April, 1909, and to nightshirts, pajamas, undershirts, underdrawers, and union suits about July, 1913, and to bathing belts in November, 1926, since whieh dates said uses have been continuous; that at the time of its expansion of business to fabric bathing belts and continuously since that time, the petitioner’s said belts have been made of the regular stock of material from whieh certain of its collars have long been made and upon its regular machines used for cutting, folding, binding, and stitching collars; that the petitioner is the owner of twelve different registered trade-marks whieh registrations date from 1900 to 1925. The record further shows large expenditures of money for advertising and many other details of petitioner’s business whieh we will not set out-here. The petitioner also introduced into the record a long list of trade-mark registrations of various firms showing the line of goods or different articles of men’swearing apparel whieh were handled by such firms and covered by such registrations.
The earliest date of use claimed by appellee is in the year 1915.
The commissioner affirmed the decision of the acting examiner of interferences whose decision dismissed the petition 'for cancellation. The decision of the commissioner is to the effect that appellant did not use the “Arrow” trade-mark for belts until 1926 and that its right to extend its use of the “Arrow” mark to belts was lost due. to laches since “petitioner practically acquiesced in the exclusive use of the mark ‘Air-O’ on belts from 1915 to 1926,” and holds that it would be “inequitable” to now give appellant the exclusive use of the trade-mark “Arrow” on belts, citing Victor Stove Co. v. Hall-Neal Furnace Co., 58 App. D. C. 65, 24 F.(2d) 893, 374 O. G. 252, 18 T. M. R. 178; and France Milling Co. v. Washburn-Crosby Co. (C. C. A.) 7 F.(2d) 304.
Appellant contends that the registration of appellee’s trade-mark was not warranted in law for the reason that the marks were identical (that is, identical in sound) and the goods of appellee and the goods of appellant at the time of appellee’s registration were of the same descriptive properties; that since belts were in the same class, and closely related in their sale and use, with the articles [713]*713sold by appellant, appellant had the right to extend its business at any time to the sale of belts and use its “Arrow” trade-mark thereon ; and that the commissioner erred in holding that appellant had lost such right by laches, inasmuch as the record was barren of any evidence whatever to the effect that appellant had any notice or knowledge of any facts which might he regarded as the basis for laches.
Counsel for appellant stated in argument that appellant first sought to register its “Arrow” trade-mark for cloth belts, which registration was refused on the theory that at that time the appellee owned a registered trademark for “Air-O” on men’s and women’s belts. He further stated that appellant did not appeal from the action of the Patent Office for the reason that appellant’s counsel was of the opinion that the issue on such an appeal would involve only the similarity of the trade-marks and the descriptive properties of the goods of the respective parties; hut that after registration had been refused, he then proceeded under section 13 of the trade-mark Act of 1905 (15 USCA § 93) for cancellation, in order that appellee’s registered mark, when canceled would not be a bar to an application for registration of the trade-mark “Arrow” for cloth belts.
We think the commissioner erred in his finding:
“That the registrant’s belt does not have the same descriptive properties as any of the articles to which the petitioner appropriated its mark up to the time the registrant entered the field is evident. One wishing to purchase collars, cuffs, shirts, etc., would never be deceived into purchasing the registrant’s belt; nor would one wishing to purchase - registrant’s belts be deceived into purchasing any one of the petitioner’s articles to which it appropriated its mark prior to 1926.”
Men’s and women’s belts are of the same descriptive properties as most, if not all, of the articles of wearing apparel upon which appellant used its “Arrow” trade-mark prior to the earliest use by appellee of its registered mark. California Packing Corp. v. Tillman & Bendel, Inc., 40 F.(2d) 108, 17 C. C. P. A. 1048; B. F. Goodrich Co. v. Hockmeyer, 40 F.(2d) 99, 37 C. C. P. A. 1068; Cheek-Neal Coffee Co. v. Hal Dick Mfg. Co., 40 F.(2d) 106,17 C. C. P. A. 1103. The application for registration of appellee should have been refused since the word “Air-O” and the word “Arrow” are identical in sound, one word being a misspelling of the other. Appellee, at the time of making his application, was not the owner of the trade-mark for which registration was sought, since the same had alreadly been appropriated, used, and registered for use for goods of the same descriptive properties. In our view it should have been clear to the commissioner that confusion would result from the concurrent use of the two marks and that the appellee’s mark should not have been registered.
Upon this record, we think the commissioner erred in his holding that on account of laches appellant lost its right to extend the use of its “Arrow” trade-mark to belts. There is no such statement of facts shown herein as was involved in the two cited eases. For instance, in the France Milling Co. Case, supra, a Circuit Court of Appeals decision, the reference to laches on the part of Wash-burn is predicated upon Washburn’s “aequiesenee of so many years, while France was building up a non-competitive business,” being such conduct as to bar Washburn from the right to an injunction in equity against the FTanee Milling Company. The “acquiescence” referred to in the France Milling Co. Case, supra, no doubt contained the element of notice which is absent in the case at bar. See eases cited in Cluett, Peabody & Co. v. Hartogensis, 41 F.(2d) 94, 97,17 C. C. P. A. 1166.
In Cluett, Peabody & Co. v. Hartogensis, supra, this court had substantially the same question under consideration, and it was there held that under the provisions of section 13 of the Trade-Mark Act of 1905, the aggrieved party having the right to bring his action “at any time,” the mere passage of time would not be a bar to a prior use of a trade-mark being successful in a cancellation proceeding. We there held:
“We hold that the section provides that the proceeding may be brought at any time for the determination of these questions by one who deems himself injured by the registration of the mark, and that laches upon the part of the applicant is not a bar to the bringing of the proceeding provided for by.the section.”
However, further along in the decision we find the following:
“We think it appropriate to say in this connection that this opinion should not be construed as implying that affirmative acts of a prior owner and user of a trade-mark, relied upon by a registrant to his injury, would not he a bar to the right of cancellation in a proceeding under said section 13. We [714]*714go no further than to hold that in view of the express language of the section mere laches is not such a bar, and nothing more than laches is claimed in the ease at bar.”
We conclude, therefore, that appellant herein is within its statutory rights in bringing the action for cancellation and that the trade-mark “Air-O,” No. 162,625, dated December 19,1922, should be canceled.
The decision of- the Commissioner of Patents is reversed.
Reversed.