
    232 F. 2d 653; 109 USPQ 390
    The Quaker Oats Co. v. St. Joe Processing Co., Inc.
    (No. 6204)
    United States Court of Customs and Patent Appeals,
    April 18, 1956
    
      Woodson, Pattishall <6 Garner, WilUam T. Woodston and Beverly W. Pattishall for appellant.
    No appearance or brief for appellee.
    [Oral argument March 6, 1956, by Mr. Pattishall]
    Before Johnson, Acting Chief Judge, and Worley and Jackson (retired), Associate Judges
   Johnson, Acting Chief Judge,

delivered the opinion of the court:

This is an appeal from the decision of the Commissioner of Patents, speaking through the Assistant Commissioner, 102 IISPQ 451, sustaining the decision of the Examiner of Interferences which dismissed appellant’s notice of opposition seeking to prevent registration •of the mark “Vit-A-Pep” for feeds for poultry, turkeys, hogs, dairy Cattle, and stock.

Appellant is the owner of the mark “Ful-O-Pep” for poultry feed, tprkey feed, dog food, and stock feeds, and possesses the following registrations: No. 188,553 (August26,1924),No.274,364 (August26, 1930), No. 390,109 (September 9, 1941), No. 396,301 (July 7, 1941), No. 524,662 (May 2,1950), and No. 524,663 (May 2,1950)'. •

In.its notice of opposition appellant alleged, insofar'as pertinent here, that appellee’s mark “Vit-A-Pep” is confusingly similar to appellant’s registered mark “Ful-O-Pep,” and is likely to cause confusion and mistake in the mind of the public as to the origin of appel-lee’s goods.

Appellant submitted deposition testimony of Colin S. Gordon, Vice President of the Quaker Oats Company:' Mr. Gordon testified that the mark “Ful-O-Pep” was used continuously by The Quaker Oats Company since 1917 in a region east of the Rocky Mountains until 1940 when its use became national. It was further testified that appellant has sold five and one-half million tons of animal feeds under the mark “Ful-O-Pep.” It was also stated in the testimony that appellant has widely advertised its “Ful-O-Pep” animal feeds by newspaper, trade-magazines, farm magazines, and radio; and has spent in excess of nine and one-half million dolars in advertising featuring its “Ful-O-Pep” trademark. Mr. Gordon also stated that appellant spent approximately $700,000. in advertising “Ful-O-Pep” during the year 1951, and that its advertising budget was in excess of the foregoing amount for the year 1953.

Appellant also introduced deposition testimony of numerous witnesses who were either farmers or feed dealers. Their testimony, insofar as pertinent here, was to the effect that they were familiar with the mark “Ful-O-Pep,” having either sold or used feeds bearing that trademark. These witnesses also professed familiarity with advertising relating to the mark. It is also to be noted that the witnesses gave- their opinions that customers would be confused by the marks “Ful-O-Pep” and “Vit-A-Pep” in the sense that these customers would believe , that products appearing under the name “Vit-A-Pep” were manufactured by the company manufacturing “Ful-O-Pep” products.

. Applicant-appellee, St. Joe Processing Company, Inc., filed no testimony, but filed a brief and was represented at the hearing before the Examiner of Interferences. However, appellee has neither filed a brief nor appeared for argument before our court.

. The Examiner of Interferences was .of the opinion that the. marks “Vit-A-Pep” and “Ful-O-Pep” were, not confusingly, similar'and' dismissed the notice of opposition. In so. doing, .he stated: ., ¡..

• It is .noted in the comparison of the notations “Vit-A-Pep” and “Ful-O-Pep” that they are alike primarily in that both are composed of three syllables) an<^ that'both end in the-word “Pep”. The initial portions of tlié marks.consisting of the syllables “Vita-A” [sic] and “Fril-O” obviously, contain nothing uncommon other than that they comprise the first two syllables of the iriárlks' ás-'a whole. These differences' in the initial portions of the1 marks,’it is. believed render the marks as a whole so totally different .in appearance, sound, and meaning, as to enable their contemporaneous use for the goods here involved, which obviously are purchased with care and certain amount of discrimination, with: out any reasonable likelihood of confusion, or mistake, or deception 'Of: purchasers as to the origin thereof. ■ ■ ' . ■

An appeal was taken to the Assistant Commission'er by the present appellant. Insofar as pertinent here, the Assistant Cdmmissidpét stated; ■

The-marks of the parties do not look alike, aside from the fact that they. ea.eh comprise a succession of three letters, a hyphen, a capital letter, a. hyphen, and the word “Pep.” Purchasers do not, in my opinion, analyze trade-marks to that extent.' The marks do riot sound alike; and their connotations are' different1. They , create entitrely different commercial-impressions. Tt is not believed'. that confusion, mistake Or deception, is ..likely to. result if. applicant’s:, márfe,.Is registered. . .

Appellant has appealed to-'us from the concurrent,holdings of • the tribunals below that the marks “Ful-O-Pep” and “Vit-A-Pep” wouId not be likely to causé confusion. There is no doubt that the goods of the parties are identical. Furthermore, with respect'to priority of-use of the-respective marks, the record indicates that appellant! was the prior'user of its mark. In this respect, the statement of the Examiner of Interferences, “* :|⅝ * [it,] is conceded by the applicant [appellee],’ that the opposer [appellant]- was first in the úse óf'its mark, * * *” has not been controverted, and must therefore be accepted as being accurate. ' - '• ■ '.'.'I'L

"The sole question before us on appeal is whether the marks “Ful-O-Pep” and “Vit-A-Pep,” when applied to identical goods, are sd'similáf as to be likely to cause confusion'in the trade and'mislead purchasers!

Before reaching 'thé main issue in the present case,'we deerri it necessary to comment on the weight to -be given the witnesses’ opiriioiis that the marks would be likely to cause confusion. In' this respect it has- been held that such testimony amounts to nothing more than1 ¿tai expression of opinion by the witness, which obviously :is not binding upon-either the tribunals of the Patent'Office or the c'ourts. Ciba Pharmaceutical Products, Inc. v. Abbott Laboratories, 28 C. C. P. A. (Patents) 1315, 121 F. 2d 551, 50 USPQ 139; Crown Fabrics Corp. v. American Viscose Corp., 32 C. C. P. A. (Parents) 701, 145 F. 2d 246, 63 USPQ 149. If such testimony .were .adopted without considering .other aspects of-the case, the effect-would be to substitute the opinions of, the witnesses for the ultimate decision to be. reached by. the court and;.would therefore be improper,; ,

We now reach the question of whether the marks are so similar that they would be likely to cause confusion when applied to the identical goods of the parties. A part of the applicable law was stated in out recent case of L. J. Mueller Furnace Co. v. United Conditioning Corp., 42 C. C. P. A. (Patents) 932, 222 F. 2d 755, 106 USPQ 112. We therefore quote the following portion of that case:

.' The.' test ápjplied. by-this" court in an, opposition proceeding is the likelihood of confusion in the minds of the purchasing public as to,the, origin of the goods. Nestle’s Milk Products, Inc. v. Baker Importing Co., Inc., 37 C. C. P. A. (Patents) 1066, 182 F. (2d) 193, 86 USPQ 80; Standard Laboratories, Inc. v. Proctor & Gamble Co., 35 C. C. P. A. (Patents) 1146, 167 F. (2d) 1022, 77 USPQ 617. This is a subjective test. Therefore prior decisions are of little valúe since each case must be decided on its own particular set of facts. North Star Manufacturing Co. v. Wells Lamont Corp., 39 C. C. P. A. (Patents) 764, 193 F. (2d) 204, 92 USPQ 128.
However, various rules have been developed for the -purpose of aiding in the determination of the question of confusing similarity. . It is well settled that the marks must be considered in their entireties, Apollo Shirt Co. v. Enro Shirt Co., Inc., 35 C. C. P. A. (Patents) 849, 165 F. (2d) 469, 76 USPQ 329; Valpo Co. v. Solis, Entrialgo v. Compania, 36 C. C. P. A. (Patents) 1160, 175 F. (2d) 457, 82 USPQ 182. But different features may be analyzed to determine whether the marks are confusingly similar, Hoffman-LaRoche, Inc. v. Roch D. Kawerk, Etc., 32 C. C. P. A. (Patents) 954, 148 F. (2d) 557, 65 USPQ 218, and similarities and dissimilarities should both be considered, Younghusband v. Kurlash Co., Inc., 25 C. C. P. A. (Patents) 886, 94 F. (2d) 230, 36 USPQ 323.
It has'also been held that the common portions of the marks cannot be disregarded, Schering & Glatz, Inc. v. Sharp & Dohme, Inc., 32 C. C. P. A. (Patents) 827, 146 F. (2d) 1019, 64 USPQ 394, * * *

Furthermore, in determining the likelihood-of confusion between marks on identical goods, it is proper to consider their appearance, sound, and meaning. Hancock v. American Steel and Wire Co., Etc., 40 C. C. P. A. (Patents) 931, 203 F. 2d 737, 97 USPQ 330; Firestone Tire & Rubber Co. v. Montgomery Ward & Co., 32 C. C. P. A. (Patents) 1074, 150 F. 2d 439, 66 USPQ 111.

.We will . now proceed to .analyze the marks “Ful-O-Pep” and “Vit-A-Pep” in view of the foregoing applicable law. In considering the marks in their entireties, it can be -readily seen that they "both consist of three syllables separated by hyphens.', .In this respect, the marks would tend to look alike. Furthermore, the marks, when .different features thereof are. analyzed, both have the suffix “Pep” in common. The marks are dissimilar in that one has the words “Ful-O” and the other “Vit-A” as prefixes. We are of the opinion that “Full-O-Pep” and “Vit-A-Pep,” when viewed in their entireties, are not confusingly similar. Even if they are not viewed in their entireties, but the similarities and dissimilarities are compared, we find that while the suffixes “Pep” are identical, the prefixes “Ful-O” and “Vit-A” do not look alike or sound alike. We feel that the dissimilarities by far outweigh the similarities, and thus cause the terms in their en-tireties to be more different than alike. Furthermore, we cannot see where the marks have the same meaning. It is therefore our opinion that the concurrent use of the marks “Vit-A-Pep” and “Ful* O-Pep” would not be likely to cause confusion in the trade.

We have carefully considered all of appellant’s arguments, but we are of the opinion that the decision appealed from should be affirmed.

Jackson, Judge, retired, recalled to participate.

Worley, Judge, concurs in the conclusion.

O’Connell and Cole, JJ., because of illness, did not participate in the hearing or decision of this case.  