The opinion
MARTIN, Judge,
with whom RICH, Judge, joins (dissenting).
I disagree with the conclusions of the majority. There is no question that “debs,” the abbreviation of debutantes, and “stylish” are two common words. However, when used together for young women’s shoes, a suggestive trademark is created but certainly not a descriptive one. The majority takes judicial notice that:
“ * * * “debs”, standing for debutantes, appears to be a word commonly seen in shoe and clothing stores, particularly for women, where it is usually associated with products for younger women, i. e., those of debutante age. It is used as are such terms as “casuals” or “suburbans”, that is, to suggest a feeling or hoped-for pleasant association with the product.”
My experience in these matters will not permit me to take such judicial notice.
However, even if the majority is correct in this supposition, its significance in this case is not apparent since we are endeavoring to decide whether “STYLISH DEBS” and “SOCIETY DEBS,” both for young women’s shoes, will cause purchaser confusion.
I believe that when these two marks are considered in their entireties, as the law requires, the concurrent use on their respective products is likely to cause confusion among purchasers. They are both used for women’s and both suggest an article suitable for a socially prominent young lady, thereby creating the same mental picture and, further, both marks have “S” as their initial letter.
Further, the majority states:
“Such a mark may become a distinctive indicator of source or origin when so used. However, opposer’s record here, except for its registration, contains nothing to indicate that the mark “STYLISH DEBS” has any distinctiveness other than that which attaches specifically to the combined words.
“While opposer as a registrant is entitled to rely on his registration and is under no burden to take testimony to prove actual confusion, where, as here, the issue is to be resolved solely by consideration of the two marks, the registration alone gives us no basis to here find that confusion would be likely. [Emphasis mine.]”
I believe the majority has overlooked the fact that opposer’s mark was registered in 1932 and it has been using this mark to identify its shoes since that date, a period of thirty years. The endeavor by the majority to wipe out trademark significance of the mark seems to me to be unwarranted and contrary to the rights and privileges possessed by opposer under the Lanham Act.