The opinion
ALMOND, Judge
(concurring).
I would reach the issue, avoided by the majority, of whether the time for determining the possibility of likelihood of confusion is the date of first use of the mark sought to be registered or the date of the opposition proceedings.
The statutory command concerning likelihood of confusion is expressed in prospective language: “No trade-mark * * * shall be refused registration * * * unless it * * * so resembles a mark registered * * * or a mark •x- * * previously used * * * by another * * * as to be likely * * * to cause confusion * * Section 2(d) of the Trademark Act of 1946 ( 15 U.S.C. § 1052 (d)). (Emphasis added.) This means that registration is prohibited if there is today a likelihood of confusion, and the question of whether confusion was likely ten or twenty years ago is irrelevant.
Section 2(d) does not speak of priority but rather of conditions extant at the time the application for registration is before the Patent Office. Contour Chair-Lounge Co., v. Englander Company, 324 F.2d 186 , 51 CCPA 833.
We would hardly pause to consider whether a mark could be registered if there had been likelihood of confusion twenty years previously, which likelihood had vanished prior to the application for registration. When the facts are reversed, there seems little reason for the court to adopt a different rule solely for the benefit of an applicant who had neglected to register his mark until a likelihood of confusion appeared.
I would remand this ease to the Trademark Trial and Appeal Board to determine the current likelihood of confusion.