wording connected by shared double P’s became “an indivisible symbol”
How later courts described this case
- wording connected by shared double P’s became “an indivisible symbol”
Written by the judges who cited it.
The opinion
SMITH, Judge
(dissenting).
It seems to me the issue here turns on the likelihood of confusion, mistake or deception arising from applicant’s use of its mark “SUP-PANTS” in view of opposer’s mark “SUPP-HOSE.” The majority arrives at its conclusion that such confusion, mistake or deception would not be likely by accepting appellant’s position that the mark for which registration is sought is a composite mark in which applicant’s well known mark “Kuppenheimer” is combined with the mark “SUP-PANTS” by means of the typographical design reproduced in the majority opinion in which the double *824 “p” in the mark “Kuppenheimer” is utilized to provide the double “p” in the mark “SUP-PANTS.” However, I am unable to agree that the analysis of applicant’s mark, upon which the majority, opinion is based, reflects the probable, and I think the expected, use of the mark in the market place.
The text of the advertisement of Schmitt-Orlow reproduced in the majority opinion states, “a thousand pictures cannot adequately describe the supreme comfort and untold advantages of SuP-Pants.” The text of this advertisement also states: “And, SuP-Pants are ‘everKreased’ for permanent crease retention.” While I agree with the majority that our decision should not be predicated solely upon the wording of such an advertisement, I would, however, give it weight as some evidence of what seems to be the probable and expected use of the mark “SUP-PANTS,” as an independent mark used to designate a particular product.
At the very least, the advertisement creates such doubt in my mind that I would resolve the doubt in favor of the position of opposer for two reasons: 1) Opposer used its mark “SUPP-HOSE” prior to applicant’s use of its mark. The record shows opposer has been responsible for an aggressive and widespread merchandising and advertising campaign, the inevitable result of which, it seems to me, is that the vocabularies and habits of product identification of prospective purchasers have been conditioned to call for and identify such products as “SUPP-HOSE” or “SUP-PANTS.” As I see it, the wording of the Schmitt-Orlow advertisement, to which previous reference was made, reflects and should be treated as some evidence of this effect of opposer’s merchandising and advertising campaign. 2) There is likely very little purchaser identification of opposer’s company name as the name of the source of its product “SUPP-HOSE.” And, while applicant’s mark proposes to tie its company name “Kuppenheimer” with the product “SUP-PANTS,” the Schmitt-Orlow advertisement suggests that this effort when directed to the average purchaser is not likely to be wholly successful. Thus, it seems to me that a purchaser is encouraged to call for and purchase “SUP-PANTS.” Such a purchaser might well do so in the honest but mistaken belief that “SUP-PANTS” and “SUPP-HOSE” were goods of the same manufacturer.
I would, therefore, affirm the decision of the Trademark Trial and Appeal Board.