
    404 F. 2d 622; 160 USPQ 46
    Independent Grocers' Alliance Distributing Co. v. Potter-McCune Company
    (No. 8073)
    United States Court of Customs and Patent Appeals,
    December 19, 1968
    
      Lloyd 0. Root, Daniel V. O’Keeffe, Mareall, Johnston, Gooh & Root, attorneys of record, for appellant.
    
      8. Stephen Baker for appellee.
    [Oral argument December 6, 1968 by Mr. Root; appellee submits on brief]
    Before Worley, Chief Judge, Rich, Almond and Baldwin, Associate Judges.
    
   Baldwin, Judge,

delivered the opinion of the court;

This appeal is from the decision of the Trademark Trial and Appeal Board sustaining an opposition by Potter-McCune Company to. Independent Grocers’ Alliance Distributing Co.’s application to register the trademark MASTER CHEF for goods described as “fresh meat,” asserting use since April 23,1962. Appellee, Potter-McCune Company, opposed on the ground of likelihood of confusion, based upon its registered trademark MASTER CHEF for “canned fruits and vegetables, coffee, and tomato juice,” asserting use since 1933.

Appellee’s priority being unquestioned, the sole issue is whether there is a likelihood of confusion between appellant’s MASTER CHEF for fresh meat and appellee’s MASTER CHEF for canned fruits and vegetables, coffee and tomato juice. The board found that there is a likelihood of confusion, and we agree.

Appellant introduced below a number of third party registrations for the purpose of showing that appellee’s mark is weak and, therefore, only entitled to a narrow scope of protection. However, if the mark, when applied to applicant’s goods, is likely to cause confusion, third-party registrations of the same or similar marks on related goods are not controlling. Chicago Pharmacal Co. v. American Home Products Corp., 47 CCPA 1149, 280 F. 2d 148, 126 USPQ 388 (1960). Third-party registrations are but one factor to be considered in determining likelihood of confusion; and the existence on the register of similar marks on the same goods or the same mark on similar goods will not aid an applicant if the mark, when applied to the goods, will nevertheless create a likelihood of confusion. Lilly Pulitzer, Inc. v. Lilli Ann Corp., 54 CCPA 1295, 376 F. 2d 324, 153 USPQ 406 (1967). Appropriation of a prior user’s mark cannot be sanctioned solely on the basis of third party registrations. Clinton Detergent Co. v. The Procter & Gamble Co., 49 CCPA 1146, 302 F. 2d 745, 133 USPQ 520 1962.

Appellant argues that appellee is not entitled to monopolize the mark MASTER CHEF for all food items regardless of their specific differences. However, in the case at bar, appellee is not claiming such broad “monopoly” rights; rather, appellee asserts a likelihood of confusion between the mark as applied to its own goods and to fresh meat. As the board found, “The goods here involved are all staple food products which are sold in the same retail outlets to the same average purchasers, and they may be used conjointly in the preparing of meals.” We believe that the use of the same mark on the goods here is likely to cause confusion notwithstanding the differences in the goods. See B. Fischer & Co., Inc. v. Monroe Turkey Processing Plant, Inc., 115 USPQ 295 (1957), involving ASTOE for frozen turkeys and for kerbs and seasoning used in preparing turkeys for roasting; Anderson, Clayton & Co. v. The Quaker Oats Company, 128 USPQ 296 (1961), involving LIFT for breakfast cereal and for salad oil, vegetable oil shortening and margarine; and Forst Packing Co., Inc. v. Antrim Sons, 28 CCPA 1005, 118 F. 2d 576, 49 USPQ 64 (1941), involving applicant’s MANSION BEAND for beef, bacon, bologna, frankfurters and meat loaves consisting of a mixture of beef and pork and opposer’s OLD MANSION for coffee, spices and rice.

Appellant advises us that the Patent Offices has registered MAS-TEE CHEF for sugar wafers and bad no objection to the appellant’s registration of that mark, when limited to fresh meat, in both instances over appellee’s registration. Presumably, appellant urges both that it is “Patent Office policy” to register MASTEE CHEF for different foods and that the Patent Office, having special expertise in this field, is of the view that MASTEE CHEF, applied to different foods, would not be likely to cause confusion. Whatever inference appellant would prefer us to thus draw is somewhat dispelled by the present board decision and by Potter-McCune Company v. C & T Refinery, Incorporated, 140 USPQ 689 (1963), wherein the board refused registration of MASTEE CHEF for vegetable oils and all purpose oil over Potter-McCune’s registered mark asserted here.

The decision of the board is affirmed.

Worley, C. J., concurs in the result. 
      
      
         Serial No. 146,291, filed June 6,1962.
     
      
       Registration No. 637,805, issued November 27, 1956. Appellee’s registered trademark includes a design as shown below, but the design is inconseciuential here.
     
      
       Appellant’s remarks and arguments concerning fresh gourmet outs of meat and the use of MASTER CHEF with another mark, is irrelevant since appellant seeks to register only MASTER CHEF for “fresh meat,” broadly.
     
      
       Of the twenty-seven third party registrations in the record, twenty-five merely include either the word “Master” or the word “Chef,” No. 625,114 is CHEFMASTER for “food colors/* and only No. 692,531 is MASTER CHEF for “sugar wafers.”
     