Application of Continental Baking Company ( 1968 )

WORLEY, Chief Judge.

Continental seeks registration of “County Fair” for fresh bread, cake and sweet goods — namely cinnamon sticks, sweet rolls and assorted pastries. Registration has been refused on the ground that applicant’s mark so resembles the mark “County Fair,” previously registered for frozen fruit and cream pies, as to be likely to cause confusion. In so holding, the Trademark Trial and Appeal Board stated, 147 USPQ 333:

Applicant’s director of marketing in his affidavit has pointed out the differences in the production and marketing of fresh bread, cake and sweet goods, on the one hand, and frozen fruit and cream pies on the other. Notwithstanding that there may be differences in the production and marketing of such goods by companies as the applicant and registrant, it is common knowledge that bread, cake, sweet goods, and pies of all sorts are produced and/or sold in the same bake shops. It may be argued that this is true only with regard to the neighborhood bakery but the fact remains that the public knows that bread, rolls, cakes, pastries and pies do emanate from a single producer or seller. In this regard we note that applicant, through its various divisions, produces and sells bread, rolls, pastries, frozen fruit pies and frozen cream pies.

The involved products are bakery products which are sold in the same type retail outlets to the same class of purchasers. In view of the identity of the marks, we conclude that there is a likelihood of confusion.

We have found nothing in the record to refute that reasoning and conclusion.

During proceedings below appellant introduced a document signed by an officer of Carnation Co., present owner by assignment of the registered mark “County Fair.” In evaluating that instrument the board stated:

Applicant has submitted an affidavit by an official of the Carnation Company, the present owner of the cited registration, and it is stated therein that “The said Carnation Company hereby consents, in the matter of the above-entitled trademark application, and otherwise to the use by the Continental Baking Company of the trademark ‘County Fair’ for fresh bread, cake and sweet goods,” and further that “The Carnation Company, being engaged in and thoroughly familiar with the business of food production and distribution, considers said goods * * * to be in a different category from frozen fruit and cream pies * * *, and believes that the use by Continental Baking Company to which consent is above given is in no way likely to cause confusion or mistake or to deceive.”

A fair reading of the above clearly indicates that the owner of the cited registration consents to applicant’s use and registration of “County Fair” for bread, cake and sweet goods. (Emphasis supplied).

* * * * * *

The cases relied upon by applicant are readily distinguishable. In the case of In re National Distillers [&] Chemical Corp., [297 F.2d 941, 49 CCPA 854] 132 USPQ 271, 273 (CC PA, 1962), the court ruled that the marks there involved did not look alike, sound alike nor evoke the same psychological responses and in the case of In re Electro Vox, Inc., 134 USPQ 463 (TT&A Bd., 1962) the cited mark and the mark sought to be registered were not the same. In the instant case, we have identical marks. The situation here also differs from that of In re A. C. Gilbert Company, 135 USPQ 38 (TT&A Bd., 1962), where it was found that there were differences between the goods, both in character and uses, that the trade channels differed, that the means of production were different and that the classes of purchasers were different. Here the goods are bakery products which can be made by the same producers, which are sold in the same type of retail outlets and which are or can be purchased by the same person.

We express no doubt as to our conclusion that there is a likelihood of confusion and therefore do not find the registrant’s consent or its opinion persuasive in this matter.

Appellant argues that In re National Distillers & Chemical Corp., 297 F.2d 941, 49 CCPA 854, does control in the present circumstances. Certainly there is nothing in National Distillers to justify the controlling effect appellant seeks here. There a majority¹ expressly found the competing marks and goods to be different, stating:

We shall first consider whether the differences in the marks and in the goods are such that confusion or mistake or deception of purchasers is likely. The marks MARQUÉS DEL MÉRITO and MERITO do not look alike, sound alike nor evoke the same psychological responses. Wines and rum are goods whose differences are clearly recognized by the purchasers thereof. These differences are sufficient to raise a doubt as to likelihood of confusion, mistake or deception of purchasers arising from the common use of the word MERITO. Under these circumstances, we think the alleged agreements between applicant and the owner of the reference registration are of evidentiary value.

It may well be that individual agreements regarding use and registration of trademarks are of “evidentiary value,” as the board here has demonstrated. However, in enacting Section 2(d) of the Lanham Act² Congress clearly charged the Patent Office with the initial responsibility of determining whether certain trademarks are entitled to registration, as distinguished from use, within the scope of that section. To hold that the present consent to register should control would be to allow individuals to take the law in their own hands, thus usurping the responsibility that Congress has placed in the Patent Office. Should there be any language in National Distillers intimating that individuals have such rights regarding registration of trademarks, then to that extent that decision is hereby expressly overruled. See also In re Wilson Jones Company,³ 337 F.2d 670, 52 CCPA 805.

The decision is affirmed.

Affirmed.

1 . Perhaps more accurately described as a nominal majority since one judge did not participate, another judge concurred with opinion, and another judge dissented with opinion.

2 . Trademark Act of 1946.

3 . There the court held:

While we have held that an agreement by the owner of a reference registration giving express consent to register should have an important persuasive effect in determining registra-bility, see In re National Distillers & Chemical Corp., 297 F.2d 941, 49 CCPA 854, that situation is not here. The agreement here conveys only the right to use the reference mark. We do not see that this agreement supports the inference that the owner of the reference thought confusion between the marks sought to he registered and the reference mark to be unlikely. Moreover, we do not feel that the inference, even if correct, is persuasive.