noting that “the display of a mark in a particular style is of no material significance since the display may be changed at any time as may be dictated by the fancy of the applicant or the owner of the mark”
How later courts described this case
- noting that “the display of a mark in a particular style is of no material significance since the display may be changed at any time as may be dictated by the fancy of the applicant or the owner of the mark”
- “the [advertising] display of a mark in a particular style is of no material significance since the display may be changed at any time as may be dictated by the fancy of the applicant or the owner of the mark.”
Written by the judges who cited it.
The opinion
RICH, Judge
(dissenting).
I would reverse. See In re General Electric Co., 304 F.2d 688 , 49 CCPA 1186 (1962), and Lever Brothers Co. v. Producers Chemical Service, 283 F.2d 879 , 48 CCPA 744 (1960). Everyone is familiar with the common word “tornado.” “VORNADO” is obviously not that word, not the same trademark, and no one is likely to think wares bearing these different marks emanate from the same source. If the source were the same, one would expect the marks to be the same, not different, since that is the way marks are used. These are not two arbitrary marks.
“VORNADO” is what I would call an irritating trademark. It is just enough different from a common word to impress that fact on the mind of the beholder. 1 He is not going to remember it as “tornado,” because he knows that *728 word and remembers the difference, which is the first thing to impress itself on his mind.
In my opinion, the marks here do not so resemble each other as to be likely to cause confusion or mistake or to deceive. 15 U.S.C. § 1052 (d).
. Lest I be misunderstood as somehow reflecting adversely on the VORNADO mark by calling it a mark of the “irritating” type, I will amplify my meaning by saying that my first impulse was to call it an “itchy” mark, that word denoting a “mild stimulation of pain receptors.” This may be a personal reaction to the mark which I have to many marks which are just enough different from common words to make one brood about them and their possible origins. The one thing I am certain about with respect to such marks is that they are not the words they resemble. That is why I hold the opinion I do in this case that confusion is *728 unlikely. I act herein on that opinion, however, because I believe it is a common and not merely a personal reaction. As has often been said, trademarks are psychological. There are no tests of record on the psychological impact of VORNADO so we have to use our judgment on that point on the assumption the populace is entirely familiar with the very common word “tornado.”