
    278 F. 2d 723; 126 USPQ 136
    Michigan Mushroom Company v. Nash-Finch Company
    (No. 6557)
    
      United States Court of Customs and Patent Appeals,
    April 12, 1960
    
      Robert I. Dennison, Brezina anct Buckingham (John Charles Brezina of cornu «el) for appellant.
    
      Herbert M. Birch for appellee.
    [Oral argument March 10, 1960, by Mr. Brezina; submitted on brief by appellee]
    Before Worley, Chief Judge, and Rich, Martin, and Smith, Associate Judges’
   Martin, Judge,

delivered the opinion of the court:

This appeal is from the decision of the Assistant Commissioner of Patents dismissing an opposition to the registration of a composite mark bearing the words “DEWY-FRESH” for use on fresh vegetables, by the registrant and prior user of “DAWN FRESH.”

Appellee’s mark is a composite having as its background a leaf shaped pattern upon which, in large letters at the center thereof, are the words “DEWY-FRESH” and, at the lower left and extending, in part, off the leaf a little elf-like figure. Use in commerce of that mark since February 10, 1955 has been alleged. Opposer, appellant here, is the owner of several registrations for use on a line of canned and fresh frozen fruits and vegetables, various canned mushroom products,’ fresh mushrooms and fresh asparagus.

The stipulated facts show that both the gross sales and the advertising expenditures in connection with the sale of products under the “DAWN FRESH” mark have been considerable during the years 1945-1956, 1956 being the year in which the verified notice of opposition to the registration of “DEWY-FRESH” was filed. In addition the stipulation indicates that at the time it was entered into “DAWN FRESH” was used on fresh asparagus and fresh mushrooms sold in packages weighing one pound or less. Also the mark was used on canned mushrooms, mushroom products, and canned asparagus.

Since the goods of the parties are the same, the class of purchasers alike, and appellant is the prior user, the sole question remaining for our determination is whether the composite “DEWY-FRESH” mark when applied to the goods of appellee would be likely to cause confusion or mistake or deception of purchasers.

The Assistant Commissioner, with whom the appellee agrees, found that the differences in sound, appearance and general impressions created by the marks were sufficient to avoid any likelihood of con.fusion. The appellee additionally contends that both of the word marks are suggestive of the qualities of the goods to which they are applied and consequently are not entitled to very broad protection.

It is the appellant’s position that the word marks dominate and that the issue of likelihood of confusion should be decided on the basis of a comparison of those words. It also maintains that the marks sound alike, look alike and stimulate the same mental associations. It is contended that the purchasers of the respective parties’ goods are not discriminating and that this is a factor which must be considered in resolving the issue of likelihood of confusion. Finally, appellant reminds us that if a doubt arises as to whether the marks are likely to cause confusion, that doubt must be resolved against appellee, the newcomer.

“DEWY-FRESH” and “DAWN FRESH” have the same general appearance, both having in common the word “FRESH,” the number of letters in each word, and the first and third letters of the first word. Considered in their entireties they sound quite similar. Their meanings stimulate the same mental associations, i.e., as fresh as the dawn with dew on the grass.

Appellee contends, inter alia, that confusion as to source is unlikely because of the background configuration and picture included in its mark. We do not believe that this factor is determinative of the issues in this instance. See W. B. Roddenbery Co. v. Kalich, 34 CCPA 745, 158 F.2d 289, 72 USPQ 138; Rice-Stix Dry Goods Company v. Industrial Undergarment Corporation, 33 CCPA 813, 152 F.2d 1011, 68 USPQ 186; Lekas & Drivas, Inc. v. Tenth Avenue Trading Corp., 42 CCPA 1010, 223 F.2d 294, 106 USPQ 190.

The remaining question to be resolved in this case is whether appellant is entitled to prevail in spite of the fact that its mark is suggestive of the quality of its goods. Suggestiveness as to quality is apparent, and yet, the mark has some fanciful characteristics. “DAWN FRESH” is neither suggestive nor descriptive of the goods themselves.

We believe whatever trademark significance the mark possesses in identifying the source of appellant’s goods could be jeopardized by the use of appellee’s mark because of their similarity. Sufficient doubt is raised in our minds as to the likelihood of confusion to cause us to decide in favor of appellant.

For those reasons the decision of the Assistant Commissioner is reversed. 
      
       Reg. No. 319,99S issued December IS, 1934, renewed December 18. 1954 ; Reg. No. 382,22S issued October 22, 1940 ; Reg. No. 531,720 issued October 10, 1950 ; Reg. No. 610,007, filed June 21, 1954, issued August 2, 1955.
     