Hot Shoppes, Inc. v. The Borden Company , 404 F.2d 999 ( 1969 )

WORLEY, Chief Judge

(dissenting).

It seems inescapable to me that when the average purchasers of “MIGHTY MO” sandwiches see “MIGHTY MALT” on frozen confections, they would be clearly justified in assuming, and would doubtless assume, that the goods have a common source.

There is no apparent reason applicant could not have selected a less confusing mark. And certainly, on this record, the first user and registrant of “MIGHTY MO” is entitled to have doubt on “a likelihood of confusion” resolved in its favor and against the newcomer “MIGHTY MALT.”

I would reverse.