
    289 F. 2d 958; 129 USPQ 410
    General Cigar Co., Inc. v. Allied Cigar Corp.
    (No. 6674)
    
      United States Court of Customs and Patent Appeals,
    June 2, 1961
    
      William D. Denson and Eobart N. Durham (Morgan, Finnegan, Durham & Pine, of counsel) for appellant.
    
      Emanuel R. Posnack for appellee.
    [Oral argument March 14, 1961, by Mr. Denson and Mr. Posnack],
    Before Worley, Chief Judge, and Rich, Martin, and Smith, Associate Judges, and Judge William H. Kirkpatrick 
    
    
      
       United States Senior District Judge for the Eastern District of Pennsylvania, designated to participate in place of Judge O’Oonnell, pursuant to provisions of Section 294(d), Title 28, United States Code.
    
   Martin, Judge,

delivered the opinion of the court:

This is an appeal from the decision of the Patent Office Trademark Trial and Appeal Board, 123 USPQ 464, dismissing appellant’s opposition to an application by appellee for registration of “WILLIAM TELL” as a trademark for cigars. The opposition is based on opposer’s prior registration and use of “Wm. Penn,” in association with a portrait of William Penn, as a trademark for cigars.

Since the goods are identical, the only issue is whether the trademarks are so similar that the use of “WILLIAM TELL” on applicant’s cigars is likely to cause confusion or mistake, or to deceive purchasers. We do not think there is such likelihood.

In the first place, cigar smokers are most discriminating in their purchase of cigars. This fact has been confirmed by the president of the opposer corporation. In answer to a question as to whether cigar smokers are discriminating people he stated:

Tliey are very discriminating smokers and liave great brand loyalty. It is much bigber in cigars than cigarettes. A man does not walk into a store, asking for a Perfecto, but be will walk into a store and ask for a “Wm Penn” Perfecto, or a “Wm. Tell” Perfecto.

As to the trademarks themselves, “Wm Penn” and “WILLIAM TELL,” although there are some similarities such as the first name and the double consonants preceded by “e” in the last name, there are also definite dissimilarities. Opposer’s trademark is the name of the founder of the Pennsylvania colony and, as registered, includes a picture of the gentleman, whereas applicant’s mark is the name of a legendary Swiss archer. Those purchasers who have sufficient education to realize the significance of the names would not confuse the two characters, while the uneducated purchasers who consider the names per se are not likely to mistake one for the other.

Appellant relies greatly on evidence of alleged confusion which appears in the record to substantiate its position. However, the incidents to which appellant refers do not relate to purchaser confusion but involve the mistakes of a writer for a trade magazine and employees of shops where the products of the parties are sold.

In view of the discrimination of the cigar smokers and the differences in the two marks, we do not believe that the use of the trademark by appellee on its goods is likely to cause confusion or mistake, or deceive purchasers. Therefore, the decision of the board is affirmed. 
      
       Whether the writer or the employees are cigar smokers is not revealed In the record.
     