The opinion
RICH, Judge
(concurring).
I agree with the result reached in Judge VAN DUSEN’S opinion. I also agree with Judge MARTIN’S view that the trademark significance of the mark sought to be registered resides primarily in the word “ebonaire,” yet I am without doubt that confusion is not likely to result from the concurrent use of applicant’s mark and “Debonair,” taking into account, as the statute requires, both the marks and the involved goods.
Particularly in the present case do I feel that the outcome depends on the facts which, as usual, are not “on all fours” with any other case I know of, contrary to opposer’s contention.
The factor which chiefly influences me is the meaning attributable to the marks. We are not dealing with marks which are “arbitrary” in the sense of not stimulating any ideas at all in the minds of the beholders. “Debonair” is one of the several spellings of a common English word with a French origin and flavor. The portion “ebonaire” of applicant’s mark is one of those hybrids which, when contemplated as it would be, in connection with the goods to which it is applied, is clearly calculated to stimulate thoughts. Thus each is pregnant with meaning.
“Debonair” is a word which I think would mean something fairly definite to anyone sufficiently literate to comprehend a movie, and that would include most everyone. It connotes a person who is affable and courteous, graceful and gay. As applied to toiletries it is suggestive of aids to the creation of such a personality.
The portion “ebonaire” applied to applicant’s hair pressing cream or hair straightening kits is a sort of anglicized version of the Chinese ideogram. It is inescapable that as used it is a play on the word “ebony,” which Negroes have taken to themselves in several connections, and applicant’s goods go primarily to the Negro market. The suffix “-aire” is a common one. Why it was used I have no way of knowing but I will assume, arguendo, that it was coupled with “ebon” to suggest the word “debonaire.” If that was the purpose, I think there is only a 50% chance the idea would get across because of the many other uses of “-aire.” Considering the market for the goods, I believe the predominant impression is bound, in any case, to be ebony, with a fancy ending, like those used in the names of cars and real estate developments. Appellant says the mark “suggests a debonaire negro.” That is good advocacy, but to the public I think “ebonaire” would suggest, rather, a product for negroes. “Debonair” carries no such suggestion.
Let me illustrate my point by expanding the field. Suppose we had the following trademarks: Yvonneaire, Devonair, Ebonaire, and Debonair. While it can be said they all sound somewhat alike and some of them even look alike, each is dominated by or is a name or word which has meaning, conveys an idea, and hence raises associations in the mind of the public. The first suggests a French girl, the second English countryside, the third (when used on a product sold primarily to Negroes) ebony or the Negro race, and the last is simply a word with its own meaning, which is quite different from the meanings suggested by the other three.
It is my opinion that even though purchasers of applicant’s products should sense in its mark the suggestion of the common tvord “debonaire,” they would not for that reason be confused and think that there was a relationship, with respect to origin, with other toiletries sold under the trademark “Debonair.” This is because of the predominant suggestion of “ebony” in applicant’s mark and its unique relationship to the products on which it is used. The primary *956 meanings engendered by perception of applicant’s and opposer’s marks, according to my view of the matter, are poles apart and I think that is enough to preclude confusion.
For these reasons I agree with the decision to affirm.