Vornado, Inc. v. Breuer Electric Mfg. Co.

390 F.2d 724, 55 C.C.P.A. 858
CourtCourt of Customs and Patent Appeals
DecidedJanuary 25, 1968
DocketPatent Appeal 7878
StatusPublished
Cited by11 cases

This text of 390 F.2d 724 (Vornado, Inc. v. Breuer Electric Mfg. Co.) 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
Vornado, Inc. v. Breuer Electric Mfg. Co., 390 F.2d 724, 55 C.C.P.A. 858 (ccpa 1968).

Opinions

ALMOND, Judge.

Vornado, Inc. appeals from the decision of the Trademark Trial and Appeal Board sustaining the opposition of Breuer Electric Mfg. Co. to appellant’s application for registration of “VOR-NADO” as a trademark for a wide variety of electrical appliances. These appliances, among others, include electric devices such as toasters, frying pans, cooking ranges and ovens, light bulbs, vacuum cleaners, floor polishing machines, hair dryers, room heaters, fans, portable room coolers and vaporizers.

Appellee in its notice of opposition alleges that appellant’s VORNADO so resembles TORNADO, previously used and registered by it for electrically-driven portable electric blowers, suction cleaners, and sprayers;1 electric dust collectors for wood working machines; 2 a device for separating dust from air consisting of a unit having a blower, a dust arrestor or filter means and a means whereby pure air can be exhausted from the unit;3 and electric machines for floor cleaning, polishing, sanding, scrubbing or waxing,4 as to be likely, when applied to appellant’s goods, and, in par-, ticular, electric vacuum cleaners, electric floor polishing machines, electric hair dryers, electric room heaters, electric fans, electric portable room coolers and electric vaporizers, to cause confusion among purchasers with the mark TORNADO as to the source of such goods.

Only appellant took testimony, appellee relying on its registrations issued prior to the date of first use alleged or shown by appellant.

Appellant operates twenty or more stores in five states dispensing all types of merchandise and food products, including VORNADO electrical equipment and appliances manufactured specifically for it. The bulk of sales of VORNADO [726]*726appliances are made in appellant’s own retail outlets. Sales of such appliances are also made through its wholesale distributing center to other retail merchants throughout the country. Appellant is the owner of subsisting registrations of VORNADO for prefabricated ducts for air conditioning systems and outlet diffusers and grilles for use therewith; for thermostats; for air conditioning units and for electrical fans for domestic and commercial use. In addition to the goods identified in these registrations, appellant also sells various electrical appliances such as those identified in its current application for registration. VORNADO appliances have been advertised on a national scale through news media, catalogues and other promotional material with expenditure during fiscal 1963 of more than fifty-five thousand dollars. Sales of VORNADO products from August 1961 to August 1964 approximated eight million dollars.

While not here in issue, it is noted that the board held that by reason of laches and acquiescence appellee was estopped from asserting that it will be damaged by the registration of VORNADO for electric fans, imputing constructive notice of appellant’s claim of ownership of VORNADO for such fans since its registration thereof, namely May 3, 1949. Thus, there is left for determination whether or not appellant’s use of VOR-NADO for electrical appliances and equipment other than electric fans is likely to cause confusion in trade with appellee’s use of TORNADO for the goods set forth in its registrations.

The record supports the findings of the board that appellee’s registrations include electrically-driven portable electric blowers, sunction cleaners, sprayers, and electric machines for floor cleaning, polishing, sanding, scrubbing or waxing, and that appellant’s identification includes electric vacuum cleaners, electric floor polishing machines and other electrical appliances and equipment so closely related to the goods of appellee that they “would generally be assumed by purchasers to emanate from the same source.”

Appellant contended before the board, and argues here, that appellee manufactures and sells goods strictly of an industrial type which are distributed to industrial plants, commercial institutions and like facilities for maintenance purposes and that such goods are incapable or unsuitable for household or domestic use whereas appellant’s goods are of the nature of household goods and are distributed through retail outlets to the general purchasing public.

The board, taking cognizance of appellant’s evidence introduced in support of this contention, reasoned that, while such evidence may create the impression that appellee is primarily concerned with the production and distribution of goods for industrial use, the controlling factor is the description of the goods in appellee’s registrations. The board noted, as do we, that there is no limitation or restriction in these registrations confining the goods described therein to commercial or industrial use. The presumption would follow, therefore, that appellee’s goods are suitable for both household and industrial use and consequently could move in the same channels of trade as those of appellant.

In General Shoe Corp. v. Lerner Bros. Mfg. Co., Inc., 254 F.2d 154, 45 CCPA 872, the court stated:

Even though the net effect of the evidence of record may be to create the impression that opposer is now primarily concerned commercially with women’s shoes under the “Holiday” mark, we do not feel that this can be controlling of the issue so long as the opposer’s earlier registration of “Holiday” is not so limited. * * *

To the same effect, see United States Steel Corp. v. Bijur Lubricating Corp., 286 F.2d 617, 48 CCPA 820; Russell Chemical Co. v. Wyandotte Chemical Corp., 337 F.2d 660, 52 CCPA 807.

It is further to be noted that appellant’s application reciting a broad series of electrical goods does not restrict [727]*727such goods to household use. The board, properly we think, approached the issue of likelihood of confusion on basis of use for both household and commercial purposes. J. C. Hall Co. v. Hallmark Cards, Inc., 340 F.2d 960, 52 CCPA 981. Under such circumstances it is reasonable to presume that it is likely that the goods of the parties would be encompassed by the same channels of trade, under similar circumstances and conditions so as to create the impression in the minds of purchasers that they emanated from the same source.

Appellant contended below, as it does here, that a pertinent factor dissuasive of likelihood of confusion is that in appellee’s advertising of its mark TORNADO the mark always appears with a representation of the whirling funnel of a tornado and that since approximately 1950 appellant’s VORNADO has always been used in a distinctive and particular style. In response thereto the board held, and we agree, that the display of a mark in a particular style is of no material significance since the display may be changed at any time as may be dictated by the fancy of the applicant or the owner of the mark. In this connection it is to be further noted that appellee relies here solely on its registrations which disclose only the term TORNADO.

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Vornado, Inc. v. Breuer Electric Mfg. Co.
390 F.2d 724 (Customs and Patent Appeals, 1968)

Cite This Page — Counsel Stack

Bluebook (online)
390 F.2d 724, 55 C.C.P.A. 858, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vornado-inc-v-breuer-electric-mfg-co-ccpa-1968.