329 F2d 1020 Commerce Drug Company v. Boyle & Company

329 F.2d 1020

COMMERCE DRUG COMPANY, Inc. d.b.a. Commerce Drug Co., Appellant,
v.
BOYLE & COMPANY, Appellee.

Patent Appeal No. 7191.

United States Court of Customs and Patent Appeals.

April 9, 1964.

Richard W. Blum, New York City (Alex Friedman, New York City, and Charles R. Allen, Jr., Washington, D. C., of counsel), for appellant.

Theodore W. Miller, Chicago, Ill., for appellee.

Before WORLEY, C. J., and RICH, MARTIN, SMITH, and ALMOND, JJ.

WORLEY, Chief Judge.

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1

Commerce Drug Company asks us to reverse the Trademark Trial and Appeal Board's decision to cancel its registration1 of "BOYLENE" for use on an antiseptic preparation for boils. Boyle & Co., petitioner, relies on prior use and registration of "Boyle"2 on "vitamin capsules, ferrous sulfate tablets, ointment for the treatment of hemorrhoids or piles, diethylstilbestrol tablets, strychnine tonic, tablets used for relief from minor throat irritations, quinidine sulphate tablets, antacid tablets, folic acid tablets, tincture benzoin compound, thyroid powder, rutin tablets, aminophylline tablets, sodium salicylate, laxative tablets, tablets for the treatment of iron deficiency, multi-vitamin preparation and ephedrine sulfate."

2

The board, after noting that Boyle & Co. is the prior user, and that the competing goods are pharmaceutical preparations, concluded "that the resemblance between the marks here involved are [sic] such as to be quite likely to cause purchaser confusion, and to lead purchasers to believe that "BOYLENE" is but another in petitioner's line of pharmaceutical products."

3

We find no error in that reasoning or conclusion. While we appreciate appellant's argument that Boyle is a surname whereas "BOYLENE" is arbitrary, the manner in which Boyle is completely incorporated into Boylene results in a marked similarity of the words.

4

Although appellant emphasizes that there is no evidence of actual confusion, the statutory test is a "likelihood of confusion" which, we have no doubt, is the case here.3

5

The decision is affirmed.

6

Affirmed.

Notes:

1

Registration No. 714,329, issued April 25, 1961, from an application filed November 13, 1959

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2

Registration No. 510,716, issued June 7, 1949, from an application filed March 11, 1948

3

"XQ5. Does petitioner put out or distribute and sell an antiseptic preparation for boils under the name of `Boyle'? A. Yes

"XQ6. If your answer to XQ5 is in the affirmative, please annex a `Boyle' label for such product. A. Attached hereto as Exhibit 4 is a label or photostatic copy thereof of Boyle Drawing Salve."

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