ex parte trademark examination cases
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- ex parte trademark examination cases
Written by the judges who cited it.
The opinion
WORLEY, Chief Judge
(dissenting).
That this appeal is controlled by the provisions of Section 2(d) of the Lanham Act there can be no question. Aside from reservations that the majority opinion seems to give undue weight to other considerations, I think the record fairly supports the conclusion that concurrent registration can properly be granted under Section 2(d).
First, although the application is for “BEAUTY NET,” the specimen shows that it is actually used in conjunction with applicant’s house mark “Sue Cory.” Under such circumstances it would seem that “Sue Cory,” rather than the somewhat laudatory and suggestive term “BEAUTY NET,” would be considered the source of the goods.
Second, applicant states that the goods of both parties are sold to “professional beauticians” for use in their own business. Opposer does not challenge that .statement and I see no reason to question its truth. Assuming its correctness, I have no doubt such purchasers would be .so “wary and discriminating” as to preclude any likelihood of confusion.
I attach little significance to the fact that both marks contain the same number of letters. So, for that matter, do “right” and “wrong.” It also seems that there is as much difference in sound, spelling, appearance, and meaning between “set” and “net” as would be the case in “nit” and “wit.”
To repeat, I think the record fairly •supports the conclusion that applicant has satisfactorily established its right to register under Section 2(d). I, thereiore, would reverse.