CLARK, Circuit Judge.
This is an appeal from a judgment of the District Court dismissing the complaint in an action instituted for the purpose of securing registration of appellant’s trademark “Breast-O’-Chicken” for canned tuna ’ fish.
For a proper understanding of the issues, a brief recital of the facts and a chronological resume of past proceedings are necessary.
In 1926, appellant’s predecessor in interest, the Westgate Sea Products Co.,1
2filed an application for registration of the trademark “Breast-O’-Chicken” under the TradeMark Act of 1905.3 That application was opposed by Van Camp Sea Food Co.3 on the basis of prior registration of its mark “Chicken of the Sea.” In 1927, before the Patent Office had taken final action on Westgatc’s application, Van Camp brought an infringement suit against Westgate in the District Court but the Court of Appeals for the Ninth Circuit affirmed a dismissal of that action on the grounds that the two marks were “similar neither in appearance nor in sound” and that Van Camp’s mark was descriptive.4 The Patent Office thereupon dismissed the opposition proceedings and granted West-gate’s 1926 application for registration,5 but the Court of Customs and Patent Appeals, upon concluding that descriptiveness of Van Camp’s mark was the primary holding of the Ninth Circuit Court, determined that it had the power to rule anew on the issue of confusing similarity — at least in so far as it related to registration (as distinguished from infringement) — reversed the Patent Office, and held that Westgate was not entitled to registration because “BrcastO’-Chicken” was so similar to “Chicken of the Sea” that “the use by [Westgate] of its trade-mark concurrently with the use by [Van Camp] of its trade-mark would cause confusion in the mind of the public * * *.”6 Meanwhile, Van Camp had' initiated a second infringement suit against Westgate in the Ninth Circuit and again judgment in favor of Westgate was affirmed by the Court of Appeals.7 That decision was based squarely upon the proposition that Van Camp’s mark was descriptive and therefore not entitled to protection from infringement. Confusing similarity was not mentioned by the court.
Finally, in 1948, after enactment of the Trade-Mark Act of 1946,8 commonly known as the Lanham Act, Westgate filed the present application for registration of “Breast-O’-Chicken” under section 2(d) of the 1946 statute. The Patent Office ruled that while [460]*460technically it was perhaps not bound by the 1931 C.C.P.A. decision, the determination made then that the two marks were confusingly similar was at least persuasive, and it refused to register Westgate’s mark. The District Court held that res judicata actually precluded, a redetermination of the issue of similarity on the merits, struck the evidence submitted on that point and dismissed the action. This appeal followed.
Appellant urges that the Patent Office erred and that the District Court misapplied the doctrine of res judicata when it failed to follow the two Ninth Circuit decisions on confusing similarity and relied instead upon the C.C.P.A. adjudication of that issue. But confusing similarity — or the lack thereof — was not even referred to in the second Ninth Circuit decision, and it was neither the ratio decidendi of nor necessary to the first decision, for the principal holding there, too, was descriptiveness. The C;C.P.A. so interpreted the decision and that interpretation takes on added plausibility from the fact that the Court of Appeals for the Ninth Circuit entirely discarded the similarity theory when it had another chance to pass upon the issues in 1932.9
In any event, the "Circuit Court of Appeals never decided, never purported to decide, and had no power or jurisdiction to decide, that Westgate was entitled to register its mark. Under the statute, the duties of the C.C.P.A. in reviewing decisions of the Commissioner of Patents are quite different from those of the District Court or Circuit Court of Appeals in infringement actions. The jurisdiction of the former involves the question of the right to register, while the jurisdiction of the latter involves the right to use.10 Here, the Court of Appeals simply ruled in an interference proceeding that Van Camp could not compel Westgate to stop using its mark, and that ruling stands. Equally efficacious and binding is the C.C.P.A. decision that “Breast-O’-Chicken” may not be registered.
We realize that these decisions create a somewhat anomalous situation, in that Westgate’s mark is available for use but not for registration. But Congress provided for final adjudication of each of these issues by a different administrative and judicial process and the statutory scheme so prescribed may not be superseded by decisions in litigation over related but dissimilar questions.11 'Consequently, the Patent Appeals Court did not err in failing to follow the decisions rendered in the Ninth Circuit,12 and neither did the District Court when it ruled in this proceeding that those decisions have no effect upon the issues before the Patent Office and the courts in the present phase of the case.
The second principal issue raised by appellant relates to certain changes which are alleged to have intervened since the C.C. P.A. decision. We therefore must consider whether a change of such magnitude occurred in the law, in the applicable procedure, or in the facts and circumstances of the case during the period elapsed since the C.C.P.A. decision, as to make possible a re-adjudication on the merits of the issues adjudicated at that time.
Section 5(b) of the Trade-Mark Act of 1905, as amended,13 which was in effect when the C.C.P.A. decided against Westgate, prohibited registration of marks “which so nearly resemble a registered or known trade-mark * * * appropriated to merchandise of the same descriptive properties, as to be likely to cause confusion or mistake in the mind of the public, or to [461]*461deceive purchasers * * *.” Section 2 (d) of the Lanham Act,14 under which the present action was brought, provides that there shall be no registration of any mark “which so resembles a mark registered in the Patent Office or a mark or trade name previously used in the United States =;= =;= =:= as £0 ke likely, when applied to the goods of the applicant, to cause confusion or mistake or to deceive purchasers * * *.” The slight difference in wording does not change the test of confusing similarity with respect to marks on goods of the same descriptive properties and no new light is created by § 2(d) as to confusingly similar marks of such character. They are not registrable. Unless the intervening change in the law is material — and with respect to the sections here relevant it is not — it cannot prevent a final adjudication of an issue in an earlier proceeding from being conclusive upon the courts in any subsequent action.
Wesigate urges to the contrary that procedures now in effect differ from those applicable when the earlier case was decided and suggests that res judicata should not be applied because of that difference.
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CLARK, Circuit Judge.
This is an appeal from a judgment of the District Court dismissing the complaint in an action instituted for the purpose of securing registration of appellant’s trademark “Breast-O’-Chicken” for canned tuna ’ fish.
For a proper understanding of the issues, a brief recital of the facts and a chronological resume of past proceedings are necessary.
In 1926, appellant’s predecessor in interest, the Westgate Sea Products Co.,1
2filed an application for registration of the trademark “Breast-O’-Chicken” under the TradeMark Act of 1905.3 That application was opposed by Van Camp Sea Food Co.3 on the basis of prior registration of its mark “Chicken of the Sea.” In 1927, before the Patent Office had taken final action on Westgatc’s application, Van Camp brought an infringement suit against Westgate in the District Court but the Court of Appeals for the Ninth Circuit affirmed a dismissal of that action on the grounds that the two marks were “similar neither in appearance nor in sound” and that Van Camp’s mark was descriptive.4 The Patent Office thereupon dismissed the opposition proceedings and granted West-gate’s 1926 application for registration,5 but the Court of Customs and Patent Appeals, upon concluding that descriptiveness of Van Camp’s mark was the primary holding of the Ninth Circuit Court, determined that it had the power to rule anew on the issue of confusing similarity — at least in so far as it related to registration (as distinguished from infringement) — reversed the Patent Office, and held that Westgate was not entitled to registration because “BrcastO’-Chicken” was so similar to “Chicken of the Sea” that “the use by [Westgate] of its trade-mark concurrently with the use by [Van Camp] of its trade-mark would cause confusion in the mind of the public * * *.”6 Meanwhile, Van Camp had' initiated a second infringement suit against Westgate in the Ninth Circuit and again judgment in favor of Westgate was affirmed by the Court of Appeals.7 That decision was based squarely upon the proposition that Van Camp’s mark was descriptive and therefore not entitled to protection from infringement. Confusing similarity was not mentioned by the court.
Finally, in 1948, after enactment of the Trade-Mark Act of 1946,8 commonly known as the Lanham Act, Westgate filed the present application for registration of “Breast-O’-Chicken” under section 2(d) of the 1946 statute. The Patent Office ruled that while [460]*460technically it was perhaps not bound by the 1931 C.C.P.A. decision, the determination made then that the two marks were confusingly similar was at least persuasive, and it refused to register Westgate’s mark. The District Court held that res judicata actually precluded, a redetermination of the issue of similarity on the merits, struck the evidence submitted on that point and dismissed the action. This appeal followed.
Appellant urges that the Patent Office erred and that the District Court misapplied the doctrine of res judicata when it failed to follow the two Ninth Circuit decisions on confusing similarity and relied instead upon the C.C.P.A. adjudication of that issue. But confusing similarity — or the lack thereof — was not even referred to in the second Ninth Circuit decision, and it was neither the ratio decidendi of nor necessary to the first decision, for the principal holding there, too, was descriptiveness. The C;C.P.A. so interpreted the decision and that interpretation takes on added plausibility from the fact that the Court of Appeals for the Ninth Circuit entirely discarded the similarity theory when it had another chance to pass upon the issues in 1932.9
In any event, the "Circuit Court of Appeals never decided, never purported to decide, and had no power or jurisdiction to decide, that Westgate was entitled to register its mark. Under the statute, the duties of the C.C.P.A. in reviewing decisions of the Commissioner of Patents are quite different from those of the District Court or Circuit Court of Appeals in infringement actions. The jurisdiction of the former involves the question of the right to register, while the jurisdiction of the latter involves the right to use.10 Here, the Court of Appeals simply ruled in an interference proceeding that Van Camp could not compel Westgate to stop using its mark, and that ruling stands. Equally efficacious and binding is the C.C.P.A. decision that “Breast-O’-Chicken” may not be registered.
We realize that these decisions create a somewhat anomalous situation, in that Westgate’s mark is available for use but not for registration. But Congress provided for final adjudication of each of these issues by a different administrative and judicial process and the statutory scheme so prescribed may not be superseded by decisions in litigation over related but dissimilar questions.11 'Consequently, the Patent Appeals Court did not err in failing to follow the decisions rendered in the Ninth Circuit,12 and neither did the District Court when it ruled in this proceeding that those decisions have no effect upon the issues before the Patent Office and the courts in the present phase of the case.
The second principal issue raised by appellant relates to certain changes which are alleged to have intervened since the C.C. P.A. decision. We therefore must consider whether a change of such magnitude occurred in the law, in the applicable procedure, or in the facts and circumstances of the case during the period elapsed since the C.C.P.A. decision, as to make possible a re-adjudication on the merits of the issues adjudicated at that time.
Section 5(b) of the Trade-Mark Act of 1905, as amended,13 which was in effect when the C.C.P.A. decided against Westgate, prohibited registration of marks “which so nearly resemble a registered or known trade-mark * * * appropriated to merchandise of the same descriptive properties, as to be likely to cause confusion or mistake in the mind of the public, or to [461]*461deceive purchasers * * *.” Section 2 (d) of the Lanham Act,14 under which the present action was brought, provides that there shall be no registration of any mark “which so resembles a mark registered in the Patent Office or a mark or trade name previously used in the United States =;= =;= =:= as £0 ke likely, when applied to the goods of the applicant, to cause confusion or mistake or to deceive purchasers * * *.” The slight difference in wording does not change the test of confusing similarity with respect to marks on goods of the same descriptive properties and no new light is created by § 2(d) as to confusingly similar marks of such character. They are not registrable. Unless the intervening change in the law is material — and with respect to the sections here relevant it is not — it cannot prevent a final adjudication of an issue in an earlier proceeding from being conclusive upon the courts in any subsequent action.
Wesigate urges to the contrary that procedures now in effect differ from those applicable when the earlier case was decided and suggests that res judicata should not be applied because of that difference. While there is a considerable variance between the 1905 and the 1946 registration procedures, that variance again is not of such substantial and material character as lo preclude application of the doctrine. Under § 9 of the Act of 1905,15 the dissatisfied party in a registration proceeding (Van Camp) had the right to appeal to the C.C. P.A.; but if any party, including the would-be registrant (Westgaic), elected to proceed in the District Court by a bill in equity under Rev.Stat § 4915,16 then dismissal of the C.C.P.A. proceedings became mandatory17 and the issue of registrability was decided de novo by the District Court. Westgate failed to so elect and as a result the decision of the C.C.P.A. became a final adjudication of the issue. We held in Hemphill Co. v. Coe,18 that “the remedies [provided by the equity action and the C.C. P.A. proceeding] are alternative and mutually exclusive” and that “[t]he remedy elected is conclusive of the issues raised and of those which might have been raised.”19 Also, the finality and binding character of the earlier decision is not impaired merely because the 1931 decision was made following an inter partes proceeding (interference action by Van Camp pursuant to § 6 of the 1905 statute) 20 whereas on the 1948 application the Patent Office denied registration by the ex parte method authorized by § 12(b) of the Lanham Act.21 The issue in both cases was the same; all the parties required by the statute to be before the Patent Office or the particular court were, in fact, represented in each case; and the method or procedure prescribed for final determination of the right to registration was pursued. The difference in procedure was purely nominal and cannot, therefore, prevent res judicata from being a bar to the second proceeding.22
As for any possible change in the facts or circumstances, we are not certain that the issue is properly before this court, for appellant failed to object when Judge Letts struck the evidence introduced for the purpose of proving that there had been no actual confusion between the two marks. But to dispel any doubt as to our view, we discuss this matter briefly.
[462]*462In 1931, when the C.C.P.A. reversed the Patent Office, “Breast-O’-'Chicken” had already been in use for some five years concurrently with “Chicken of the Sea”. It is not probable that the Patent Appeals Court simply disregarded that factual experience or that it based its decision solely on a comparison of the marks themselves.23 No useful purpose would be served by permitting the reopening of a case after twenty-two years on the ground that there was no confusion during that period if a competent tribunal had previously determined ■ — either because of the intrinsic similarity o>f the marks or based on the factor of five years’ actual experience or both — that concurrent use of the marks was likely to cause confusion in the public mind. That is true particularly in view of the fact that the absence of actual confusion, even over long periods of time, has “very little probative force”24, and “is not a controlling factor”.25
The conclusive effect of a judicial determination of the ultimate fact of confusing similarity should not be disturbed simply because some evidentiary facts from which the ultimate facts might have been inferred had not been considered or had been unavailable in the former proceeding.26 Otherwise, cases of this type could be reopened again and again, whenever a party collected some more evidence with which to attack and undermine the earlier ruling. Here, as in other fields of law, there must some time be an end to litigation, not only in the interest of the adverse party who should not be vexed twice or thrice or even more times for the same cause, but also in the interest of the state in settled law and legal relations and that of courts and litigants in an orderly judicial process which would be seriously jeopardized by unnecessary overcrowding of already crowded dockets.27
We have considered the other points raised by appellant and we find no error. Our decision, however, is without prejudice to any application for concurrent registration under § 2(d) which appellant might wish to file in the Patent Office.
Affirmed.