The opinion
Smith, Judge,
dissenting, with whom Bich, Judge, joins :
The mark “CASCADE” which the parties use for their respective goods is an arbitrary and fanciful mark and, as such, may become a strong indicator of source or origin of the goods to which it is applied. As such, I think the first user thereof is entitled to prevail in this opposition to registration by another of this mark for other goods. The opinions of the Trademark Trial and Appeal Board and the majority seem to base their dismissal of the opposition solely on differences in the goods to which the mark is applied by the respective parties. While differences in the goods is a factor which must be weighed in each opposition proceeding for its bearing on the likelihood of confusion, I do not think differences in goods per se is the controlling factor in such a proceeding. As pointed out in Hollywood Water Heater Co. v. Hollymatic Corporation, 47 CCPA 782, 274 F. 2d 679 , 124 USPQ, 452 , the question we must pass on under the Lanham Act is not solely whether the goods are similar or dissimilar but rather is whether the average purchaser would ascribe a common source or origin to the dissimilar goods sold under identical marks. In the present case, I think it is likely that the purchasing public would ascribe a common source or origin to whiskey and baking mixes where both are sold under the name “CASCADE”. 1 I would, therefore, reverse the Trademark Trial and Appeal Board.
The relation between whiskey and food products Is closer than Is suggested by the majority opinion. The well-known “bourbon” whiskey candies and the widespread use of whiskey as a flavoring constituent in “whiskey” cake, which are facts of which I would take judicial notice, may well suggest to an average purchaser that a “CASCADE” cake mis could well originate from the same source as “CASCADE” whiskey.