under section 2(d), confusion as to source more likely when the senior user offers a wide variety of goods under the mark
How later courts described this case
- under section 2(d), confusion as to source more likely when the senior user offers a wide variety of goods under the mark
Written by the judges who cited it.
The opinion
ALMOND, Judge
(dissenting).
It is with deference that I find myself in dissent from the views expressed by the majority opinion.
The respective marks are obviously different. I have difficulty construing the border around the “I” in appellee’s mark as an “0”. It seems to be what it is alleged to be — a decorative border. Appellee has explained that the “I” is derived from “Intermetall G.m.b.H.,” a German affiliate, which would negative any assumption of an intent to palm off appellee’s goods as those of appellant.
The respective goods are different. Appellant’s products are primarily glass, but include plywood panels. The closest similarity in goods is between appellant’s glass envelopes for vacuum tubes and the semi-conductor transistors and diodes of appellee. There is no evidence in the stipulated testimony to show that the date of first use by appellant on vacuum tubes precedes appellee’s date. But even if appellant is the first user, semi-conductors are so vastly different from tubes requiring glass envelopes that a purchaser would not be likely to be confused or mistaken as to origin.
The purchasers are discriminating in this field. Those who purchase glass envelopes from appellant would be manufacturers of vacuum tubes. Purchasers from these manufacturers would be discriminating enough to know the difference between vacuum tubes and transistors.
*1013 The majority appears to rely on the testimony of appellant to the effect that its research and development effort is expected to extend the use of glass and plastic in electronic fields. While appellant may reasonably extend its mark into related fields, there is nothing to indicate even an interest in semi-conductor components. The record does not show that glass envelopes and plastic bases are used in semi-conductor devices, a protective vacuum apparently not being required. Moreover, the record fails to show that glass and plastic, the materials on which research and development are directed, are used in transistors or diodes of the type used by appellee.
I would affirm.