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41 Trademark Rep. 293 (1951)
Doughboy Industries, Inc. v. The Reese Chemical Company

handle is hein.journals/thetmr41 and id is 379 raw text is: DOUGHBOY IND. v. THE REESE CHEM. The only similarity between the registrant's mark and that of the petitioner is that both have a girl on a cloud. In the registrant's mark, the cloud is hilly, providing no flat spot for sleeping, and the girl is in a seated position with arms outstretched and hair streaming as if blown by the wind, and wearing what appears to be a bathing suit. The word Aeromatic is written in large script below the figure of the girl partly over the picture of a mattress. The picture does not convey any idea of sleeping on a cloud. The idea is rather that of riding on a cloud and the picture appears to indicate motion and wide-awakeness. I do not think that the picture used by the registrant represents petitioner's slogan, or that it is so similar to the picture used by the petitioner as to create any likelihood of confusion. The case of Judson Dunaway Corp. v. The Hygienic Products Company, 84 U. S. P. Q. 31, 178 F. 2d 461 (Court of Appeals, First Circuit, 1949), is believed to be somewhat relevant. In that case the mark of the plaintiff, which was held to be a good trade-mark, including the figure of a woman pouring material from a can into a toilet bowl, and defendant was also using a picture showing a woman pouring material from a can into a toilet bowl. Despite the similarity in the figures and their actions, the court held that there was no likelihood of confusion, taking into consideration differences in details such as background, and the appearance of clothing of the female figures, as well as the use of totally differ- ent word marks in connection with the pictures. In the present instance, there is not even the similarity of the position of the figures which was present in the cited case. The decision of the examiner dismissing the petition for cancellation is accordingly affirmed. DOUGHBOY INDUSTRIES, INC v. THE REESE CHEMICAL COMPANY Commissioner of Patents-January 25, 1951 TRADE-MARKS-GOODS OF DIFFERENT CLASSES-PARTICULAR INSTANCES Prophylactic preparation for prevention of yenereal diseases held not likely to be confused as to origin with wheat flour or animal feed, sold under same mark, in view of manifest dissimilarity between the products. TRADE-MARK ACT OF 1946--REGISTRABILITY-SECTION 2(a) Trade-mark does not exist apart from goods in connection with which it is used; and nature of mark, for purposes of section 2(a) of 1946 Act, may be determined from associations conveyed by word used as mark, in connection with the goods on which it is used. Under 1946 Act, as under 1905 Act, it is not necessary that word be scandalous per se to be unregistrable; if mark is scandalous by reason of goods in connection with which it is used, it is unregistrable; and the same interpretation should apply to the provisions of sections 2(a), covering matter which may disparage or falsely suggest connection with persons, living or dead, institutions etc., or bring them into contempt or disrepute. TRADE-MARK ACT OF 1946-UNREGISTRABLE MATTER-DISPARAGING, FALSELY SUGGESTING CONNECTION, ETC. 41 T. M. R.

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