Lever Bros. v. Barcolene Co.

BALDWIN, Judge.

This appeal is from the decision of the Trademark Trial and Appeal Board 1 dismissing appellant Lever Brothers Company's opposition to the application of the Barcolene Company 2 to register the following mark for a household cleaner:

The opposition was based on appellant's prior use and registration of the mark ALL in connection with household cleansing products. The mark has been used by appellant or its predecessor in title, Monsanto Chemical Company, since as early as 1948. "Advanced ALL" has been used since 1948, "Fluffy ALL" and "Dishwasher ALL" since 1955 and "Cold Water ALL" since 1963. Testimony of appellant's witnesses shows that the products were sold through such outlets as supermarkets, department stores, hardware stores, variety stores and some drug stores. There have been sales of appellant's products in all 50 states ~nd through overseas outlets all over the world. Advertising of the products by appellants has been extensive.

Appellant has always displayed the mark ALL in distinctive, stylized, lower case letters. Although the word ALL has been displayed on packages in association with another word such as "Advanced," *1164 “Fluffy,” etc., the word ALL is printed in substantially larger sized letters and has been emphasized in the display of the marks on the package.

Appellee’s application for registration as amended states that the mark is for “household cleaner for windows, mirrors, chrome, enamel, and tile, distributed as a household item in retail grocery and department stores.”

The board held that the marks as applied to the goods were not so 'similar as to be likely to cause confusion or mistake: "

* * * [C]onfusion as to source is not likely to occur merely because of the inclusion in applicant’s mark of the word “all”. In arriving at this conclusion, we have not overlooked the fact that the designation “all” for detergent products has achieved a considerable degree of commercial success and. recognition and that opposer, by reason thereof, possesses a substantial good-will and property right therein. But, we do not believe that opposer’s rights in “all” are such as to preclude the subsequent registration of marks comprising this term where the combination has a well known meaning which would be likely to be recognized as such by the average purchaser. * * * [T]he commercial impression engendered by applicant’s mark is derived not from the component words “all” or “clear,” per se, but rather from the mark as a whole. When the term “all clear!” is encountered in the market place in connection with a house hold [sic] cleaner, the average purchaser will recognize it as a play on the expression “ALL OLEAR” popularized in connection with air raid drills, and used by applicant to suggest that the use of its product will produce entirely clear or clean surfaces. We are not persuaded, as opposer urges, that it would suggest “one more preparation for cleaning which originates from the same source as the other ‘all’ produets long marketed and popularized by opposer.”

We agree with the board. While appellant points ont some similarities between the word ALL as it is used by both parties, inspection of the two marks also shows some obvious differences. Considering appellee’s mark in its entirety, we are convinced that there is no likelihood of confusion. Accordingly, the decision of the board is affirmed.

Abstracted at 160 tTSPQ 826 (1969).

Application Serial No. 166,968 filed April 18, 1963.