# Wincharger Corporation v. Wiancko Engineering Company

> Court of Customs and Patent Appeals · July 11, 1962 · 301 F.2d 927

URL: https://www.frixlaw.com/law-library/cases/9448487

## Case

- **Full name:** WINCHARGER CORPORATION, Appellant, v. WIANCKO ENGINEERING COMPANY, Appellee
- **Court:** Court of Customs and Patent Appeals
- **Decided:** July 11, 1962
- **Citations:** 301 F.2d 927; 49 C.C.P.A. 1121
- **Precedential status:** Published
- **Opinion:** Dissent by Kirkpatrick
- **Judges:** Worley, Rich, Martin, Smith, Kirkpatrick
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9448487

## Opinion text

KIRKPATRICK, Judge
(dissenting).
I am unable to agree with the majority in its conclusion that the marks are not confusingly similar. The Board found that “ ‘Winco’ and ‘Wiancko’ are substantially different in appearance, and while they contain some similarity in sound, they are readily distinguishable in that respect.” — a finding adopted by the majority of this court though not in exactly the same terms. Judging by eye and ear, which is necessarily the basic consideration in trademark cases of this kind, I am unable to reach any conclusion other than that the marks are not substantially different in appearance and are not readily distinguishable in sound. In fact, it seems to me that anyone would be hard put to it to devise a word any closer to the opposer’s mark than the applicant’s, without making a letter for letter copy. The difference between “co” and “cko” is practically nil, and the whole case for the applicant hangs upon the insertion of an intermediate “a” which in pronouncing the word may be, and probably frequently is, slurred over. 1
The goods of the parties are closely related products. The Board found that the goods of both “may be classified as electronic and electrical equipment and *929 are to some extent sold to the same classes of purchasers or advertised in the same publications”—a finding not questioned by the majority. Both the Board and the majority agree that the applicant’s broad designation of the goods as power supplies “comprehends static and transistorized power equipment of the character sold by opposer.” In other words, regardless of the precise types of equipment now being sold, if registration is allowed, the trademarks may be used in connection with identical goods.
We are not here concerned with the law of unfair competition nor with the right of the applicant to the use of its corporate name, nor with its good faith in adopting it as a trademark. The issue is confusing similarity of the marks and nothing else. It is true that precedents are not very helpful in determining that issue. Even so, I do not see how the court can be applying consistent standards as to likelihood of confusion when it decides that “Dyanshine” and “Di-shine” (Barton Mfg. Co. v. Hercules Powder Co., supra) are confusingly similar and also that “Winco” and “Wiancko” are not.
This court, in a recent case in which it was held that “Huvilon” so resembled “Uvinul” as to be confusingly similar, pointed out that “The fact that neither name has any meaning apart from the goods on which they are used makes it difficult for a purchaser to keep the names clear of possible confusion based on * * similarities.” General Aniline & Film Corp. v. Hukill Chemical Corp., Cust. & Pat.App., 287 F.2d 926, 927 . In the present case we have two perfectly meaningless words, both of them unusual and neither remotely suggestive of any English word. In the case of ordinary well known English words, most literate people know how the word should be spelled and, therefore, quickly notice a very slight variance. Not so with words like those before us or like “Huvilon” and “Uvinul”. It seems to me that the soundness of the court’s observation in the “Huvilon” case quoted above is demonstrated by the fact that in a period of seven months the letters received by the applicant showed over 100 different variations or misspellings of its name although the writers had the correct address and thus appeared to be acquainted with the applicant.
I would reverse the decision of the Board.
. “There is no such thing as a correct pronounciation for a trade-mark. It is pronounced in different ways by different people.” Barton Mfg. Co. v. Hercules Powder Co., 88 F.2d 708, 710 , 24 CCPA 982.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9448487. Public record. Not legal advice.