Hunter v. Russell , 23 F.2d 774 ( 1927 )

VAN ORSDEL, Associate Justice.

Appellant Hunter sought the cancellation of appellee Russell’s registered trade-mark, comprising a circle above which, and conforming to the outline of the circle, is printed the words “Mondamin Farm.” Within the circle is a pictorial representation of a person milking, and the word “Choeomilk,” Choc

printed thus -0- within the circle, close Milk

to the upper portion of the pictorial representation. This mark is used on chocolate containing milk and cream preparations in liquid form.

The petitioner, Hunter, claims that he is damaged- by the registration, of the Russell mark, and alleges prior use of the word “Choc-o-lishus” as a trade-mark for chocolate syrup and other preparations, including chocolate flavored milk. It is urged by the petitioner that the dominant characteristic of the Russell trade-mark, the abbreviation of the word “Choco” for “chocolate,” is so similar to “Choc-o-lishus,” the dominating feature of which he asserts is “Choco,” as to cause confusion in trade.

We agree with the Commissioner that the abbreviation “Choco” is not the dominant feature of the Russell trade-mark. Nor do we find any such similarity between the two marks as in our judgment would lead to confusion in trade.

The decision of the Commissioner is affirmed.