# Colgate-Palmolive Company v. Carter-Wallace, Inc., by Change of Name From Carter Products Inc. > Court of Customs and Patent Appeals · November 12, 1970 · 432 F.2d 1400 URL: https://www.frixlaw.com/law-library/cases/9456155 ## Case - **Full name:** COLGATE-PALMOLIVE COMPANY, Appellant, v. CARTER-WALLACE, INC., by Change of Name From Carter Products Inc., Appellee - **Court:** Court of Customs and Patent Appeals - **Decided:** November 12, 1970 - **Citations:** 432 F.2d 1400; 58 C.C.P.A. 735; 167 U.S.P.Q. (BNA) 529; 1970 CCPA LEXIS 264 - **Precedential status:** Published - **Opinion:** Dissent by Rich - **Judges:** Rich, Almond, Baldwin, Lane - **Cited by:** 11 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/9456155 ## How later opinions describe it (automated extraction) - affirming the Board’s determination that the common term PEAK was not so strong as to cause confu- sion despite the addition of the word PERIOD - finding “PEAK PERIOD” not confusingly similar to “PEAK” as used in very different products ## Opinion text RICH, Judge (dissenting, with whom LANE, Judge, joins): With respectful deference for the views of the majority, I cannot agree that a reasonable likelihood of confusion does not exist in the concurrent use of PEAK and PEAK PERIOD on the two consumer products here involved — dentifrice and deodorant. These are both low-cost, consumer-purchased, shelf items in the same category of merchandise, sold in the same departments of the same stores for the related uses of personal hygiene, bought by persons of all degrees of intelligence and perspicacity —some of them careless. Appellant is admittedly the prior user and registrant and the rule is well established in cases of this short that doubt as to likelihood of confusion shall be resolved in favor of the prior user and against the newcomer. This court so stated in Waldes Kohinoor, Inc. v. Associated Spring Corp., 357 F.2d 404 , 53 CCPA 1084 (1966). The rule needs no citation of authority as it has been universally applied in all courts for a long time. As stated in Vandenberg, Trademark Law and Procedure (1959), p. 109, *1403 The theory behind this [rule] is that the newcomer’s field of selection of a mark is not so limited as to require the adoption of a mark likely to cause confusion. That there is in fact at least a reasonable doubt about likelihood of confusion in this case can scarcely be gainsaid in view of the equal division which has existed on this court since the first argument which necessitated the reargument. I cannot agree with the majority’s analysis of opposer’s mark. PEAK as applied to dentifrice, for which appellant has registered it, has no apparent meaning at all. Certainly it is in no way descriptive and it does not seem to me that it is in any way even suggestive of either the goods or any of the properties of the goods. It is, therefore, an “arbitrary” mark notwithstanding it is a common English word. Marks need not be freshly coined to be arbitrary. Until the public has been taught to associate it with some dentifrice it would not suggest dentifrice. In view of these facts, it is a potentially strong mark and entitled to protection against encroachment. I regard PEAK PERIOD on another personal hygiene, drug store item as an encroachment. It is in the public interest to protect the legitimate interests of merchants by protecting registered marks. If we do not stop here, where will the line be drawn on the registration of other combinations of PEAK with other words for other proprietary cosmetic and toilet articles? I cannot regard the differences in these goods as a factor likely to prevent confusion. We are not concerned with confusion of the goods but with confusion as to their source. The question is not whether people will confuse the goods, or the marks, but whether the marks will confuse people or lead them into mistake or deceive them. 15 U.S.C. § 1052 (d). The board has held “that the involved goods may be assumed to originate with a single source if sold under the same or similar marks.” I consider the marks to be “similar.” Opposer, Colgate-Palmolive Company, alleges in its Notice of Opposition: 1. Opposer is a leading manufacturer, seller, and distributor of dentifrices, deodorants, toilet articles and other products. [My emphasis.] In its Answer, applicant-appellee does not traverse that allegation which we therefore take to be true. If we assume, as we must, sale by opposer of PEAK dentifrice, what would be more likely than that the portion of the purchasing public familiar with such sales, seeing PEAK PERIOD deodorant on the market, would assume that it emanates from the same source? I harbor no doubt about likelihood of confusion and I would therefore reverse. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9456155. Public record. Not legal advice.