SWEENY v. REPLOGLE

SWEENY v. REPLOGLE. (Court of Appeals of District of Columbia. Submitted March 9, 1926. Decided April 5, 1926.) No. 1829. Trade-names and trade-marks and unfair competition @=>43. “Pneuway” held deceptively similar to name “Pneumode,” as affecting right to registration for use_ on same goods. Appeal from the Commissioner of Patents. Proceeding by Robert P. Sweeny for registration of trade-mark, opposed by Daniel B. Replogle. Prom decision of the Commissioner of Patents; sustaining opposition, applicant appeals. Affirmed. J. T. Newton, of Washington, D. C., for appellant. D. B. Replogle, of Berkeley, Cal., and M. H. Lane, of Washington, D. C., for appellee. Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices. [MAJORITY — VAN ORSDEL, Associate Justice.] VAN ORSDEL, Associate Justice. This is a trade-mark opposition, filed.by appellee, Replogle, opposing the registration by appellant, Sweeny, of the word “Pneuway” as a trade-mark for vacuum cleaners. The opposition is based upon the alleged prior use by appellee of the mark “Pneumode” upon vacuum cleaners and parts thereof. The goods are the same, and the opposer has established prior adoption and use of his mark. The ease turns solely on the similarity of the marks. The Commissioner of Patents held that the marks are sufficiently similar to be likely to create confusion in trade, and upon that ground alone held that appellant is not entitled to the registration of his mark. The decision of the Commissioner of Patents can be sustained on the prior decisions of this court. Patton Paint Co. v. Sunset Paint Co., 53 App D. C. 351, 290 E. 326; Arkell Safety Bag Co. v. Safepaek Mills, 53 App. D. C. 218, 289 F. 616. The case here is even stronger than in the eases cited, since there is here a decided similarity in the last syllables of the words composing the marks in controversy; while in the cases cited there was no such similarity, in appearance, sound, or significance, in the dissimilar syllables of the marks. The decision of the Commissioner is affirmed.