Scholl Mfg. Co. v. Schiff Co.

D.C. Circuit

Scholl Mfg. Co. v. Schiff Co.

158 F.2d 101, 81 U.S. App. D.C. 324, 71 U.S.P.Q. (BNA) 290, 1946 U.S. App. LEXIS 3852

CourtCourt of Appeals for the D.C. Circuit

DecidedDecember 9, 1946

DocketNo. 9220

StatusPublished

This text of 158 F.2d 101 (Scholl Mfg. Co. v. Schiff Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Scholl Mfg. Co. v. Schiff Co., 158 F.2d 101, 81 U.S. App. D.C. 324, 71 U.S.P.Q. (BNA) 290, 1946 U.S. App. LEXIS 3852 (D.C. Cir. 1946).

Pincite

Opinion

PRETTYMAN, Associate Justice.

This is a trade-mark case. Appellee-company sought to register a composite mark consisting of the words “Medico Pedic”, printed in a peculiar script, and “For Foot Health”, both expressions being framed in rectangular lines and extending across a drawing of a shield. Appellant opposed the registration because of its prior registration of the word “Practi-pedic”. Both marks are applied to shoes. The Commissioner of Patents denied ap-pellee-company’s application, and it brought an action in the District Court under Section 4915 of the Revised Statutes.¹ That court entered judgment for the plaintiff.

[102]*102The Assistant Commissioner of Patents, acting for the Commissioner, held that the appellee-company’s mark is not merely descriptive, and we agree with that view. He also held that there is a considerable degree of dissimilarity in the appearances of the two marks, and we agree with that view. He held that the dominating spoken part of the appellee-company’s mark is the expression “Medico Pedic” and that this expression and appellant’s mark, “Practi-pedic”, are so similar in sound that the concurrent use of the marks on shoes would be likely to cause confusion and mistake in the mind of the public and to deceive purchasers. This latter view does not seem to us a reasonable one.

There is no precision instrument for gauging degrees of similarity in sounds, but we are unable to escape the conviction that the spoken terms “Medico Pedic” and “Practipedic” are, to the ordinary ear, clearly dissimilar. This fact, coupled with the complete dissimilarity in the appearances of the marks, compels us to agree with the District Court that the two marks do not so nearly resemble each other as to be likely to cause confusion or mistake in the mind of the public.

Affirmed.

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PRETTYMAN, Associate Justice.

This is a trade-mark case. Appellee-company sought to register a composite mark consisting of the words “Medico Pedic”, printed in a peculiar script, and “For Foot Health”, both expressions being framed in rectangular lines and extending across a drawing of a shield. Appellant opposed the registration because of its prior registration of the word “Practi-pedic”. Both marks are applied to shoes. The Commissioner of Patents denied ap-pellee-company’s application, and it brought an action in the District Court under Section 4915 of the Revised Statutes.¹ That court entered judgment for the plaintiff.

[102]*102The Assistant Commissioner of Patents, acting for the Commissioner, held that the appellee-company’s mark is not merely descriptive, and we agree with that view. He also held that there is a considerable degree of dissimilarity in the appearances of the two marks, and we agree with that view. He held that the dominating spoken part of the appellee-company’s mark is the expression “Medico Pedic” and that this expression and appellant’s mark, “Practi-pedic”, are so similar in sound that the concurrent use of the marks on shoes would be likely to cause confusion and mistake in the mind of the public and to deceive purchasers. This latter view does not seem to us a reasonable one.

There is no precision instrument for gauging degrees of similarity in sounds, but we are unable to escape the conviction that the spoken terms “Medico Pedic” and “Practipedic” are, to the ordinary ear, clearly dissimilar. This fact, coupled with the complete dissimilarity in the appearances of the marks, compels us to agree with the District Court that the two marks do not so nearly resemble each other as to be likely to cause confusion or mistake in the mind of the public.

Affirmed.

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Bluebook (online)

158 F.2d 101, 81 U.S. App. D.C. 324, 71 U.S.P.Q. (BNA) 290, 1946 U.S. App. LEXIS 3852, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scholl-mfg-co-v-schiff-co-cadc-1946.

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