General Cable Corporation v. Republic Wire and Cable Corporation

327 F.2d 1019, 51 C.C.P.A. 1035
CourtCourt of Customs and Patent Appeals
DecidedFebruary 20, 1964
DocketPatent Appeal 7099
StatusPublished
Cited by1 cases

This text of 327 F.2d 1019 (General Cable Corporation v. Republic Wire and Cable Corporation) is published on Counsel Stack Legal Research, covering Court of Customs and Patent Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
General Cable Corporation v. Republic Wire and Cable Corporation, 327 F.2d 1019, 51 C.C.P.A. 1035 (ccpa 1964).

Opinions

ALMOND, Judge.

General Cable Corporation appeals from the decision of the Trademark Trial and Appeal Board dismissing appellant’s opposition1 to registration by appellee, Republic Wire and Cable Corporation, of “SUPER-FLEX” as a trademark for “Electrical Control Cable, Namely Traveling and Lighting Cable for Elevators.”

The opposed application2 claims first use on May 1,1957. Appellant has plead-* ed a number of its prior trademark registrations. In lieu of taking testimony, the parties entered into a stipulation of facts.

The stipulation on behalf of appellee recites, in material substance, that:

Its principal business is the sale and distribution of traveling and lighting cables for elevators; that the mark is not used directly or indirectly on any of its other products; that in excess of $20,-000 has been spent since May 1957 in advertising the goods 3 under the mark; that advertising, in the main, has been by direct mail distributions to known potential customers; that it directs no advertisement to the general public or to electrical wholesalers with respect to its goods sold under the mark; that its customers use the mark in placing orders and in specifying types of the goods; that neither in response to advertisements nor in any other way, have any requests for goods been received bearing any other mark; that it has not encountered any confusion of the mark with any other mark; that the goods are used to provide electrical connection between electric power and signal sources in a building and a moving elevator, serving to connect points which may be several hundred feet distant from each other; that the goods vary in size and when sold in high quantity (1000' or more) the price varies from approximately $100.00 per 1000' to approximately $1,200.00 per 1000' according to the number of internal conductors which may run from two to thirty or more; that the goods must have abrasion resistant surfaces and be insulated against the effects of oils, greases, water, fumes and ozone; that, they must meet local, state and federal requirements; that the potential market, for the goods sold under the mark consists of five to six hundred independent elevator maintenance or elevator installation contractors, largely members of the National Association of Elevator Contractors; that replacements are sold to elevator maintenance companies and new installations and modernizations to elevator contractors; that the goods are sold throughout the United States to at least 125 different customers and that the representatives of purchasers who control the placement of orders are the owners themselves, their purchasing agents or installation engineers.

The stipulation on behalf of appellant recites, in material substance, that:

[1021]*1021It has adopted and uses throughout the United States a series of marks which include the syllable “SUPER” and that such use has been substantially continuous since original adoption.

The marks listed are:

“SUPER-SERVICE”;4 “SUPER-LITE”; 5 “SUPER 6-T”;6 “SUPER THERMAX” ;7 “SUPERSHEATH”;8 “SUPERTUF”;9 “SUPERTEL” asserted prior use for electrical wires and cables, and “SUPER-LINE.” 10

The stipulation further recites that: The products sold under the various marks include a complete line of rubber and thermoplastic insulated power, lighting and control cables for all standard types of service and many special constructions; that the cables are supplied with coverings and sheaths of various types designed for uses as control cables, ornamental pole and bracket cables, power cables, street lighting cables, telephone cables and numerous other uses; that among the various assortments of cables are elevator traveling cables employed for connection of control or lighting circuits of an elevator to the fixed source of supply; that these traveling cables are designed and used to perform functions similar to those of appellee’s goods; that appellant has manufactured and sold them continuously for more than thirty years and that its customers for same include elevator contractors, and elevator installation and maintenance contractors; that sales of elevator traveling cables during the period from January 1, 1957 to December 31, 1960 were in excess of $850,000; that advertisement of these cables is confined to descriptions and listings in appellant’s catalogues; that appellant owns and operates manufacturing plants and facilities in twenty-two locations and maintains sales offices in sixty-six cities throughout the United States and that its customers include public utility companies, railroads, building and construction companies, mining companies, oil companies, manufacturing companies and agencies of federal, state and municipal governments.

The record shows that appellant is the prior user with respect to each of its marks.

The issue here is, as stated by the board, whether or not appellee’s mark, “SUPER-FLEX,” so resembles any or all of appellant’s marks as to be likely to cause confusion or to cause mistake or to deceive.

The board in a brief opinion held that:

“It is apparent that the marks of the parties are similar only in that each embodies the term ‘SUPER,’ which possesses an inherent connotation of excellence or superior quality, and which, as further shown by the record herein, forms a component of marks registered by others for electrical wires, cables and or related goods. Giving due consideration to the nature of the term ‘SUPER,’ and considering the differences between applicant’s mark and each of opposer’s marks in their entireties, it is concluded that there is no reasonable likelihood of purchaser confusion, mistake or deception.”

We find no evidence of record or reasonable inference to be deduced therefrom that appellant has or will be damaged by appellee’s use of the mark [1022]*1022“SUPER-FLEX” for the specific goods to which it appertains. The extensive scope, variety and special applications of appellant’s goods, the distinction in price and nature of the many goods sold by appellant negates any categorization of sameness in all of the goods of both parties by classifying them as “wire and cable.”

Appellant’s series of marks with their dissimilar suffixes are presumptively used by appellant to distinguish the marks from each other as well as the goods to which they apply.

A weighty consideration here is the specialized nature of the goods and the market for the goods for which appellee seeks to register its mark. The goods are ordered by those with technical knowledge or subject to technical advice. The goods require explicit specifications. They are adaptable to a limited and specific purpose with prices varying according to technical specifications and, to a large extent, to individual situations. Safety aspects must meet governmental inspection and approval. These circumstances would tend to lend assurance against mistake as to product or source. Potential purchasers in addition to being discriminating persons are limited in number to five or six hundred. It would not seem logical or realistic to conclude under these circumstances that these purchasers of appellee’s goods identified under the “SUPER-FLEX” mark would be misled into the belief that they were buying the products of appellant.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

General Cable Corporation v. Republic Wire and Cable Corporation
327 F.2d 1019 (Customs and Patent Appeals, 1964)

Cite This Page — Counsel Stack

Bluebook (online)
327 F.2d 1019, 51 C.C.P.A. 1035, Counsel Stack Legal Research, https://law.counselstack.com/opinion/general-cable-corporation-v-republic-wire-and-cable-corporation-ccpa-1964.