# Golden Gate Salami Company v. Gulf States Paper Corporation > Court of Customs and Patent Appeals · May 28, 1964 · 332 F.2d 184 URL: https://www.frixlaw.com/law-library/cases/9450058 ## Case - **Full name:** GOLDEN GATE SALAMI COMPANY, Appellant, v. GULF STATES PAPER CORPORATION, Appellee - **Court:** Court of Customs and Patent Appeals - **Decided:** May 28, 1964 - **Citations:** 332 F.2d 184; 51 C.C.P.A. 1391; 141 U.S.P.Q. (BNA) 661; 1964 CCPA LEXIS 388 - **Precedential status:** Published - **Opinion:** Dissent by Almond - **Judges:** Worley, Rich, Martin, Smith, Almond - **Cited by:** 7 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9450058 ## How later opinions describe it (automated extraction) - finding standing, which requires only a belief in damage, but finding no likelihood of confusion - noting that damage from conflicting trademark and service mark registrations is "not often subject to precise proof” - finding no likelihood of confusion ## Opinion text ALMOND, Judge (dissenting, with whom WORLEY, Chief Judge, joins). I am unable to agree with my associates that “we do not think there is any likelihood of confusion, mistake or deception as a result of the use by appellee-petitioner of its trademarks for its goods and the use by appellant-respondent of E-Z OPEN PAK within an arrow design for its packaged luncheon meat in a cellophane tear open package.” It seems perfectly clear to me that the average housewife scanning a display of packaged luncheon meats would be likely to be confused as to the source or origin of goods bearing the marks E-Z OPEN PAK, on the one hand, and E-Z OPENER or E-Z PAK, on the other. It is true that the majority purports not to decide this question because appellee did not appeal. However, the opinion states there is no likelihood of confusion and predicates both of the “two matters” presented to the court on this finding. It appears to me that the decision sets forth circuitous and hypertechnical reasons for the result obtained. The trademark laws should not be interpreted to establish an entangling administrative morass in which an owner of at least 18 trademarks for paper products is unable to prevail because the wrong tribunal decided in his favor for the wrong reasons. The decision of the majority interrupts the family of marks appellee has been seeking to build over nearly forty years by permitting registration of an “E-Z” mark for packaged goods. The reason the strong family of appellee’s marks is broken is that he did not appeal a decision directing cancellation of E-Z OPEN PAK. Since cancellation is precisely what he sought, I see no reason why he should be required to bear the enormous expense of appealing. The majority of this court decrees that his petition to cancel is dismissed because the board, although agreeing that the registration should be canceled, predicated its decision on section 24 of the trademark statute instead of on section 2(d). Even if appellee failed to prove ownership of a family of marks, I find a likelihood of confusion between appellant’s mark “E-Z OPEN PAK” and appellee’s marks “E-Z PAK” and “E-Z OPENER” for which the board found proof of prior and continuous use. All of the board members agreed that the registration should be canceled, the only difference being in the basis for it. This court, however, sustains dismissal of the petition and permits the registration to stand because appellee did not appeal and the section 24 question was not properly raised. At this point, appellee could well be in doubt as to his remedies. Should he petition to cancel again, based on section 24? His first petition to cancel, nearly four years ago, was denied. Reluctance to spend another four years in the administrative jungle to test another ground would be understandable. Any further action by appellee would involve further expense, delay, *192 and inconvenience. Perhaps, in retrospect, appellee should have been “dissatisfied” ( 35 U.S.C. § 141 ) when he won below, albeit on other grounds, and should have filed a cross appeal. Surely Congress did not intend to set up intricacies and technicalities to deny relief to those who fail to assign the proper grounds for a petition to cancel. The heading of the case shows that Cancellation No. 7604 is before the court. Appellee filed the petition for that cancellation, appeared below, and appeared before this court. To say, as does the majority, that this court cannot decide in his favor because he failed to appeal from a decision granting the full relief for which he petitioned, is to place form before substance. I am of the opinion that we can consider the issue of likelihood of confusion presented in Cancellation No. 7604, and should find confusion likely. My views coincide with those of the dissenting member of the board below, who said: “The record in this case clearly shows that the products marketed by respondent under its mark are prepared meat products packaged in a cellophane tear open package, or, stated conversely, a cellophane tear open package containing prepared meat products. Further, it is readily apparent that the mark ‘E-Z OPEN PAK’ relates to a particular feature of the package which contains such meats. Petitioner, on the other hand, has established prior use of the substantially similar marks ‘E-Z OPENER’ and ‘E-Z PAK’ for bags, sacks, and/or containers, which individually bear petitioner’s marks, and of which a substantial percentage are sold to the food retailers for use in the packaging of meat products. In view of the close relationship of respondent’s products, as described above, to petitioner’s bags, cartons or containers which are used in the packaging of meats, and which visibly bear the mark on the package and/or container when sold to the ultimate consumer, it seems quite evident that when the respective marks are applied to the aforementioned products, that persons familiar with petitioner’s marks, upon seeing the mark ‘EZ OPEN’ affixed to the package or carton containing meat, would reasonably assume that such container either originates with or is in some way connected with petitioner. I would therefore grant the petition to cancel respondent’s registration.” I would, therefore, reverse the decision of the board dismissing the petition to cancel. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9450058. Public record. Not legal advice.