court must consider how public would view and remember mark in making a purchase of the merchandise
How later courts described this case
- court must consider how public would view and remember mark in making a purchase of the merchandise
- dominant portion is that which consumers would “be likely to remember and use ... as indicating origin of the goods,” even if another part of the mark is more “conspicuous”
- Smirnoff and Sarnoff “strikingly alike when spoken”
- DuPont the more conspicuous part of mark, but consumers more likely to remember Clar-apel as the indicator of origin; thus, Clar-apel is dominant part of DuPont Clar-apel mark
Written by the judges who cited it.
The opinion
GARRETT, Presiding Judge
(dissenting).
I respectfully dissent from the conclusion reached by my associates in this case.
It seems to me that the presence of the word “Du Pont” as an integral and presumably valid part of appellee’s mark so clearly states the origin of appellee’s goods that there is not the slightest likelihood of the public being confused or purchasers deceived as to the origin of appellant’s merchandise by the application thereto of the notation “Clarifoil” as a trade-mark, notwithstanding its partial resemblance to the word “Clar-apel.”