
    WADSWORTH, HOWLAND, & COMPANY, INCORPORATED v. TRUSSED CONCRETE STEEL COMPANY.
    Trademarks ; Opposition.
    The word “Agates” as a trademark for a liquid concrete hardening material was held not to be registerable, in view of the prior registration of the words “Agate” and “Agatene” as trademarks for varnishes, where it appeared that the goods of the applicant and the opposer could be put to the same use.
    No. 1219.
    Patent Appeals.
    Submitted March 12, 1919.
    Decided March 31, 1919.
    ' Hearing on an appeal from a decision of the Commissioner of Patents dismissing an opposition to the registration of t trademark.
    
      Reversed.
    
    The facts are stated in the opinion.
    
      Mr. B. B. Kent for the appellant.
    
      Mr. W. Merle Smith for the appellee.
   Per Curiam :

Appellant corporation, Wadsworth, Howland, & Company, Incorporated, appeals from a decision of the Commissioner of Patents dismissing its opposition to the registration by appellee, Trussed Concrete Steel Company, of the word “Agatex” as a trademark for a liquid concrete hardening material.

The opposition is based upon the prior registration and use by appellant of the words “Agate” and “Agatene” as trademarks for varnishes. It clearly appears that the goods bearing the marks of the opposer are capable of being used for the same purposes as the goods of appellee. There is evidence that such use has been made. The matter of actual use is not important, for it appears that the goods can be put to tbe same use, and the likelihood of confusion depends as much upon the probabilities of the future as upon the experience of the past. The same or similar use of the goods of the respective parties demonstrates like qualities, and the similarity of the marks furnishes convincing proof of the likelihood of confusion.

The decision of the Commissioner of Patents is reversed, and the clerk is directed to certify these proceedings as by law required. Reversed.

A motion for rehearing was denied May 22, 1919.  