California Packing Corp. v. Santa Ana Preserving Co.

SMYTH, Chief Justice. The question here concerns the right of Santa Ana Preserving Company to have registered as a trade-mark, for use on jellied fruits, fruit jelly, fruit preserves, and canned fruit, the words “Del Sur,” inclosed within a border of somewhat irregular, but symmetrical, outline. Opposition was interposed by California Packing Corporation on the footing that it was the owner of' “Del Monte,” a mark applied by it to goods of the same character as those of the ap-a plicant, long before the latter had adopted its mark. The Examiner of Interferences found there was no similarity between the marks and dismissed the opposition. This action was affirmed by the Assistant Commissioner oh appeal, and the opposer brings the case here asking us to reverse him. It is conceded that the opposer adopted and applied its mark first, and, of course, that the goods of the parties have the same descriptive properties. This leaves but one question for determination, viz.: Are the marks so similar that, if both were used in commerce, they would be likely to produce confusion in the minds of prospective purchasers. The marks neither sound alike nor look alike. One familiar with the mark “Del Sur” would not be likely to confuse it with the other mark, and purchase goods bearing it on the assumption that, because they did bear it, they originated with the opposer. To be sure, both marks commence with the Spanish word “Del,” meaning “of the,” but we must consider each mark as a whole, and, when we do, the marks are not sufficiently similar to deceive either the eye or the ear. It has been ruled that “Don Caesar” was not an infringement of “Don Carlos” (Chance v. Gulden, 165 Fed. 624, 92 C. C. A. 58), and that “Union World” did not infringe “Union Deader” (American Tobacco Co. v. Globe Tobacco Co. [C. C.] 193 Fed. 1015); yet in each mark the first word, as here, was the same.' While the outlines of the marks before us have something in common, this is not sufficient to justify the conclusion that they are deceptively 'similar. The courts look with disfavor upon any mark which indicates that its owner, being the last comer, is bent upon appropriating a- part of his business rival’s good will, but we are convinced that applicant’s mark would not serve such a purpose, and therefore affirm the Commissioner. Affirmed.