Stephen L. Bartlett Co. v. Arbuckle Bros.

ROBB, Associate Justice. Appeal from a decision of the Patent-Office in a trade-mark opposition proceeding, reversing the decision of the Examiner of Interferences, and sustaining the opposition to the registration by appellant,.applicant below, of the word “Havesome”' as a trade-mark on cocoa. Shoi-tly before applicant adopted this mark, the opposer, appellee here, adopted the word “Drinksum” as a trademark for coffee. It has been held that cocoa and coffee are goods of the same descriptive properties, within the meaning of the Trade-Mark Act (Comp. St. § 9485 et seq.). Baker Co., Limited, v. Harrison, 32 App. D. C. 272. The question with which we are here concerned, therefore, is whether the marks themselves are deceptively similar, for otherwise the opposition should be dismissed. That the words involved here are not confusingly similar in appearance or sound we think is apparent, and unless we are to rule that the adoption of a suggestive mark by one trader precludes all other [1002] traders from employing another mark of similar suggestiveness,’but entirely different in appearance and sound, applicant is entitled to registration. In his opinion, reversing the Examiner of Interferences, the Assistant Commissioner said: “It may be admitted that the labels submitted are not similar, and that the appearance of the words ‘Havesome’ and ‘Drinksum’ are not similar. It may be admitted that the sounds of the two words, when pronounced, are not similar.” The cases cited-by the appellee and alluded to in the decision of the Assistant Commissioner, involving unfair competition, have no application here, where we are concerned' solely with the question whether an honest use of the mark to be registered will be" likely to cause' confusion in the trade or deceive purchasers. The scope of our inquiry being thus restricted, we agree with the Examiner of Interferences that these two marks are not deceptively similar, and hence that the applicant is entitled to registration. The decision therefore is reversed. Reversed.