Libbey-Owens-Ford Glass Company v. General Aluminum Window Co., Inc

275 F.2d 947, 47 C.C.P.A. 833
CourtCourt of Customs and Patent Appeals
DecidedMarch 15, 1960
DocketPatent Appeal 6495
StatusPublished
Cited by7 cases

This text of 275 F.2d 947 (Libbey-Owens-Ford Glass Company v. General Aluminum Window Co., Inc) 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
Libbey-Owens-Ford Glass Company v. General Aluminum Window Co., Inc, 275 F.2d 947, 47 C.C.P.A. 833 (ccpa 1960).

Opinions

MARTIN, Judge.

This appeal is from a decision of the Commissioner of Patents, acting through the Assistant Commissioner, reversing the Examiner of Interferences and dismissing an opposition to the registration of “Therm-O-Lite” on the Principal Register.

Appellant’s registered mark, “Thermopane,” 1 has been used by Libbey-OwensFord (L-O-F) since 1934, when it was acquired from the predecessor in use, Thermopane Company, to identify insulating glass. Besides insulating glass, L-O-F manufactures and sells sheet glass, plate glass, safety glass, and various other flat glass products. The particular type of unit with which the “Thermopane” mark is used is one which has two or more pieces of flat glass, each pair of pieces being hermetically sealed around the edges so that a dead air space of one-fourth or one-half inch is maintained therebetween. Such units are used as windows in buildings and display cases, in refrigeration cars, in trailers, etc., to prevent frosting and heat loss. When used in a building these units replace conventional single pane windows, and because of their insulating [949]*949property, obviate the necessity for storm windows as well.

“Therm-O-Lite” combination units comprise an aluminum frame assembly which carries both glass and screen sections, which sections can be arranged to ventilate during warm weather and insulate against heat loss during colder weather when used in conjunction with conventional doors and windows of homes. They are secondary units in contradistinction to the products of L-0F which are primary units.

The sole issue in this case is whether appellee’s mark, “Therm-O-Lite,” so resembles that of appellant, as to be likely, when applied to appellee’s goods, to cause confusion, mistake, or deception of purchasers as to source or origin.

The Assistant Commissioner held that builders and dealers were not likely to be confused by the marks, and that it was “highly improbable that one seeking to purchase combination storm windows and doors would be likely to think of, or consider the purchase of, fixed window panes of insulating glass.” She felt the goods to be so commercially different that a purchaser is not likely to think that there is any connection between the producers.

Appellant maintains that the marks have identical meanings, that “lite,” a corrupted form of light, has a dictionary meaning of “pane.” Appellant feels that the Assistant Commissioner based her decision upon the difference in the goods, and asserts such a test is wrong, contending the proper test to be whether purchasers would think that the goods came from the same source. Appellant contends that the goods are competitive in a sense, i. e., that one building a house would have the choice of using “Thermopane” or, alternatively, conventional windows with storm sash. Therefore, the choice of one would preclude the other. Appellant also points out that the goods are similar at least in that both utilize at least two panes of glass. L-O-F finally asserts that its mark is famous,2 and that it is desirous of preventing the registration of any mark which would utilize “thermo” in conjunction with glass and windows.

Appellee is of the opinion that the real crux of this case is the difference between the products, strongly relying upon the fact that its product is of aluminum, and contending that the glass used therein is incidental. Appellee does not agree that the “Thermopane” and “Therm-O-Lite” units are alternative, pointing out that one is a primary, and the other a secondary, unit. It is said that “lite” connotes lightness in weight (aluminum storm sash is lighter than the older wooden storm sash), that “Therm-O-Lite” is suggestive of that property, and that the ordinary purchaser would not think of “lite” in the sense of “pane.” Appellee contravenes appellant’s assertion that it is reasonable for the two manufacturers to expand into each others’ fields. Finally, appellee asserts that there is a sufficient difference between the goods to obviate any likelihood of confusion and that no actual confusion was proven.

In considering the issues which have been presented here it might be well first to discuss the nature of the goods of the litigants. Although their products are not the same they certainly are related, and contrary to appellee’s contention, we believe they do constitute alternatives. The use of appellant’s “Thermopane” insulated glass should preclude the use of appellee’s “Therm-O-Lite” storm windows. Conversely, a reasonable person would not use “Thermopane” glass to insulate a conventional glass window but would instead use “Therm-O-Lite” storm windows or a similar product. Furthermore, it does not tax the imagination to assume that appellant could reasonably extend its business to include storm windows and doors which prospect is also a factor to be considered. W. B. Roddenbery Co. v. Kalich, 158 F.2d 289, 34 C.C.P.A. 745.

[950]*950Next we should turn our attention to the litigants’ relationship with the public in connection with their products. According to the evidence, between 1944 and 1955 appellant spent almost three and one-half million dollars in advertising its “Thermopane” units in both consumer and trade magazines, as well as via informative booklets directed to the consumer and various building trades. Since 1944 almost six million “Thermopane” units have been sold, mostly to homeowners, but also to building contractors, refrigerator manufacturers and car builders.

Appellee’s trademark “Therm-O-Lite” has been used since 1949 to identify its combination storm windows and doors. “Therm-O-Lite” storm sash has been advertised in newspapers, by radio, television and direct mail, and at trade conventions and home shows. Although appellee does not sell directly to the ultimate consumer, it is obvious that such an advertising program was used not only to acquaint prospective dealers with its product but also to attract the ultimate purchaser. It is apparent that both parties directed their advertising to the same classes of purchasers and are interested in identifying their products in the mind of the general public by their respective trademarks. Therefore, if the trademarks are confusingly similar it is likely that purchaser confusion, mistake or deception would result.

As to the trademarks themselves, “Thermopane” and “Therm-O-Lite,” their similarities are readily apparent as are their dissimilarities. Both have two syllables, the first, “thermo,” being common to both. The second, “pane” and “lite,” although different in sound and appearance, would have the same connotation to the general public even though appellee contends that the use of “lite” was predicated upon its desire to emphasize the lightness of aluminum in contrast to the ponderousness of wood. “Thermo” although suggestive, but not descriptive, is the dominant feature of both trademarks.

Even though a consideration of portions of marks may be a valuable aid in deciding likelihood of confusion, the ultimate test to resolve this issue is a comparison of the trademarks in their entireties since that is the form in which they appear to the general public.

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Libbey-Owens-Ford Glass Company v. General Aluminum Window Co., Inc
275 F.2d 947 (Customs and Patent Appeals, 1960)

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Bluebook (online)
275 F.2d 947, 47 C.C.P.A. 833, Counsel Stack Legal Research, https://law.counselstack.com/opinion/libbey-owens-ford-glass-company-v-general-aluminum-window-co-inc-ccpa-1960.