The Kalart Company, Inc. v. The Camera-Mart, Inc.

Customs and Patent Appeals

The Kalart Company, Inc. v. The Camera-Mart, Inc.

258 F.2d 956, 46 C.C.P.A. 711

CourtCourt of Customs and Patent Appeals

DecidedOctober 1, 1958

DocketPatent Appeal 6370

StatusPublished

Cited by3 cases

This text of 258 F.2d 956 (The Kalart Company, Inc. v. The Camera-Mart, 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

The Kalart Company, Inc. v. The Camera-Mart, Inc., 258 F.2d 956, 46 C.C.P.A. 711 (ccpa 1958).

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Opinions

JOHNSON, Chief Judge.

A petition has been filed to cancel the registration of “Camart” ¹ for cameras,, camera dollies and parts thereof, tripods- and boom arms, camera tripods, prismatic lenses for motion picture cameras, camera mounts, lens extension tubes, motion picture cameras and parts thereof and electrical syncronous motors and' soundproof housings known as blimps. Petitioner is the registrant of “Kalart” 2 for photographic cameras and camera attachments, as well as of several other marks, most of which contain the word “Kalart” in combination with another word.

The Examiner of Interferences was of the opinion that the similarity between-“Camart” and “Kalart,” as applied to the-goods in question, was such as to cause-confusion, mistake or deception of purchasers. His decision to cancel registrant’s mark was reversed on appeal by the Assistant Commissioner, 112 U.S. P.Q. 147, on reconsideration 112 U.S.P.Q. 367, primarily for the reason that the actual trade practices of the parties, as shown by the record, militated against the possibility of confusion urged by petitioner.

Petitioner has appealed from the Assistant Commissioner’s decision urging most strenuously that the Assistant Commissioner erred in considering the trade practices of the parties in view of the fact that the certificates of registration of the registrant and petitioner recite identical goods, at least in part.

[957]*957We agree with the petitioner that the trade practices of the registrant may not be considered in a cancellation proceeding, for the proceeding is based upon the likelihood of damage resulting from the registration of a mark. Since the registration gives the owner thereof certain procedural advantages “in connection with the goods or services specified in the certificate”³ it is rather obvious that a registrant cannot defend in a cancellation proceeding by. showing, on the basis of testimony adduced during such proceeding, that the goods with which its mark is actually used (as distinguished from those recited in its certificate) are such as to negative the likelihood of confusion with the petitioner’s mark. If the registrant were successful in the proceeding, there is no assurance that its trade practices would not change to correspond with the allegations of the certificate. In view of this fact, we must restrict ourselves to a consideration of the goods recited in registrant’s certificate. This case must be considered, therefore, on the basis of the use of the respective marks of the parties on identical goods, namely cameras, parts thereof and the like.

Notwithstanding this identity of goods, we are of the opinion that the decision of the Assistant Commissioner must be affirmed. In our opinion the marks neither look alike nor do they have similar meanings. On the contrary, “Cam-art” would seem to be suggestive of cameras or the like, whereas “Kalart” is not similarly suggestive. At best, there is only a possibility of a slight similarity in sound, not great enough, however, to raise the possibility of confusion as to origin. Weighing this similarity against the dissimilarities set forth above, we are of the opinion that the marks in question are not confusingly similar.

For the foregoing reasons, the decision of the Assistant Commissioner is affirmed.

Affirmed.

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JOHNSON, Chief Judge.

A petition has been filed to cancel the registration of “Camart” ¹ for cameras,, camera dollies and parts thereof, tripods- and boom arms, camera tripods, prismatic lenses for motion picture cameras, camera mounts, lens extension tubes, motion picture cameras and parts thereof and electrical syncronous motors and' soundproof housings known as blimps. Petitioner is the registrant of “Kalart” 2 for photographic cameras and camera attachments, as well as of several other marks, most of which contain the word “Kalart” in combination with another word.

The Examiner of Interferences was of the opinion that the similarity between-“Camart” and “Kalart,” as applied to the-goods in question, was such as to cause-confusion, mistake or deception of purchasers. His decision to cancel registrant’s mark was reversed on appeal by the Assistant Commissioner, 112 U.S. P.Q. 147, on reconsideration 112 U.S.P.Q. 367, primarily for the reason that the actual trade practices of the parties, as shown by the record, militated against the possibility of confusion urged by petitioner.

Petitioner has appealed from the Assistant Commissioner’s decision urging most strenuously that the Assistant Commissioner erred in considering the trade practices of the parties in view of the fact that the certificates of registration of the registrant and petitioner recite identical goods, at least in part.

[957]*957We agree with the petitioner that the trade practices of the registrant may not be considered in a cancellation proceeding, for the proceeding is based upon the likelihood of damage resulting from the registration of a mark. Since the registration gives the owner thereof certain procedural advantages “in connection with the goods or services specified in the certificate”³ it is rather obvious that a registrant cannot defend in a cancellation proceeding by. showing, on the basis of testimony adduced during such proceeding, that the goods with which its mark is actually used (as distinguished from those recited in its certificate) are such as to negative the likelihood of confusion with the petitioner’s mark. If the registrant were successful in the proceeding, there is no assurance that its trade practices would not change to correspond with the allegations of the certificate. In view of this fact, we must restrict ourselves to a consideration of the goods recited in registrant’s certificate. This case must be considered, therefore, on the basis of the use of the respective marks of the parties on identical goods, namely cameras, parts thereof and the like.

Notwithstanding this identity of goods, we are of the opinion that the decision of the Assistant Commissioner must be affirmed. In our opinion the marks neither look alike nor do they have similar meanings. On the contrary, “Cam-art” would seem to be suggestive of cameras or the like, whereas “Kalart” is not similarly suggestive. At best, there is only a possibility of a slight similarity in sound, not great enough, however, to raise the possibility of confusion as to origin. Weighing this similarity against the dissimilarities set forth above, we are of the opinion that the marks in question are not confusingly similar.

For the foregoing reasons, the decision of the Assistant Commissioner is affirmed.

Affirmed.

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258 F.2d 956, 46 C.C.P.A. 711, Counsel Stack Legal Research, https://law.counselstack.com/opinion/the-kalart-company-inc-v-the-camera-mart-inc-ccpa-1958.

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