Sears, Roebuck and Co. v. Leo C. Hofman

258 F.2d 953, 46 C.C.P.A. 708

• Court: Court of Customs and Patent Appeals
• Decided: October 1, 1958
• Docket: Patent Appeal 6359
• Status: Published

Opinions

WORLEY, Judge.

This is an appeal from the decision of the Assistant Commissioner of Patents, acting for the Commissioner, reversing the decision of the Examiner of Interferences, and holding appellee entitled to registration of the mark “Royal Plumage” as applied to hosiery, over the opposition of appellant’s prior registration and use of its mark “Royal Purple” also for hosiery. The record consists of a stipulation of facts together with certain exhibits. We quote therefrom with respect to appellant’s mark:

“Sears adopted and began using a trade-mark comprising the words ‘Royal Purple’, in conjunction with a plume design, as shown on labels hereinafter referred to, for hosiery for women and children, about July 15, 1927, and has continuously used said trade-mark on such goods and in the advertising thereof from said date up to the present time. Sears’ sales and advertising of hosiery under said Royal Purple trade-mark have extended throughout the United States, including the State of Maryland, and said sales have been large from the start, totaling over $300,000,000 for the period 1927 to 1953, inclusive.

“Sears’ advertising of said goods under said Royal Purple trade-mark has totaled over $10,000,000 for the same period of time.”

The record before us is silent with respect to applicant’s use of his mark.

Although we have given consideration to the various arguments regarding the respective designs used in conjunction with the marks, the decisive question is whether concurrent use of the marks as a whole would be likely to result in confusion or deception.

It is, of course, obvious that the word “Royal” is common to both marks. Indeed, by applying the process of judicial trademark vivisection to the extreme, it is possible to establish other common characteristics; however, when the marks are viewed in their entirety, as is usually done in the market place, we think there are sufficient differences in appearance, sound and meaning to avoid likelihood of confusion.

For example, the word “Royal” is not arbitrary, but is a suggestive word frequently used to indicate high quality. It has been consistently held that trademarks will not ordinarily be held confusingly similar solely because each of them includes a word of that type. Lauritzen & Co., Inc. v. Borden Co., 239 F.2d 405, 44 C.C.P.A., Patents, 720, and authorities there cited.

Moreover, “Royal Purple” is a unitary term defined by both Funk and Wagnall and Webster as meaning a particular shade of purple. “Royal Plumage” has no such meaning. Accordingly, while the former would ordinarily be understood as referring to color, the essential impression given by the latter is that of plumes, with no particular color association.

While appellant’s registration includes, as a comparatively minor feature, a picture of a crown surmounted by three feathers, and it appears that the same or similar representations of feathers have been used by appellant in conjunction with its “Royal Purple” mark, it does not appear that appellant has ever used the word “plumage” in connection with its marks. As above indicated, we are of the opinion the pictures used were not of such a nature as to be likely to result in confusion with appellee’s mark.

Finding no error, the decision appealed from is affirmed.

Affirmed.

JACKSON, Judge, retired, recalled to participate, was present at the argument of this appeal but did not participate in the decision.