Opinion

S C M Corporation v. Royal McBee Corporation

  • 395 F.2d 1018
  • 55 C.C.P.A. 1179
Court
Court of Customs and Patent Appeals
Filed
Jun 6, 1968
Status
Published
Author
Rich
On the bench
Worley, Rich, Smith, Almond, Kirkpatrick
Cited by
2 cases
Authority
More cited than 24.8%

The opinion

RICH, Judge

(dissenting).

I would affirm. While consumers might be confused as to the source of some goods concurrently sold under the trademarks ELECTRA and ELEC-TRESS, I do not believe this would be the case when the goods are electric typewriters. Fort Howard Paper Co. v. Gulf States Paper Corp., 376 F.2d 904 , 54 CCPA 1375 (1967); E. L. Bruce Co. v. American Termicide Co., 285 F.2d 462 , 48 CCPA 762 (1960). Furthermore, electric typewriters are so expensive and purchased so infrequently as to assure that considerable care will be exercised in their selection with attention to who made them. It does not appear to me that the majority has given sufficient consideration to the nature of the goods, their cost, the purely descriptive nature of the “ELECTR” portion of the marks, or the precedents above cited and others of like import.

Furthermore, opposer’s own exhibits, presumably attached to its Notice of Opposition to support its case, show that its use of ELECTRA in advertising and on the typewriters is in association with “Smith-Corona” and “SCM Corporation,” or both. It is not opposer’s practice to rely on ELECTRA as a primary source designation. This is another reason why, on this record, there is no reasonable likelihood of confusion, mistake, or deception. As further rendering it unlikely, the record shows the applicant’s commercial practice to be to merchandise “ROYAL ELECTRESS” typewriters so that purchasers know the source to be appellee, not opposer.

*1021 It appears to me that the majority has overlooked or given insufficient weight to the foregoing and other factors, as reported at 149 USPQ 904 , which led the three-member board to its eminently sound unanimous decision.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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