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
SMITH, Judge
(dissenting).
The marks “VORNADO” and “TORNADO” have such differences in meaning and probably psychological impact upon the consumer that I think confusion would not be likely.
From the testimony here, a purchaser confronted with the marks in issue would associate the mark “TORNADO” with what he knows as a “tornado,” which one witness described as “a large swirling, violent body of air of a stormy nature.” No similar meaning or association was shown to attach to the fanciful word “VORNADO.”
Thus, the respective marks produce distinct and nonconfusing psychological impacts in the mind of a consumer and present an excellent example of an instance where the test of the similarity of overall word structure is not controlling. In my view, the single letter difference of appellant’s apparently coined and arbitrary mark “VORNADO” is sufficient to cause a consumer to attach to the word a meaning very distinct from that which he attaches to the mark “TORNADO.” The fact that the difference occurs in the initial letter of the marks also is significant in that it is this difference which initially stimulates the perception into seeking the meaning for the words as wholes. Here the record establishes the meaning of the word “tornado” as being distinct from any meaning likely to be assigned to the mark “VORNADO.” The psychological imagery evoked by the respective marks being compellingly different, I would reverse the decision of the board.