This appeal is from the decision of the Trademark Trial and Appeal Board, 158 USPQ 662 (1968), dismissing Phillips' opposition to the registration by Webb, application serial No. 247,757, filed June 10, 1966, of the trademark "CRC MARINE FORMULA 6-66" for "rust and corrosion inhibitor for protecting metal surfaces on boats and components thereof from the corrosive effect of salt air and/or salt water." One member of the board dissented. We reverse.
Phillips based its opposition on its registrations of "66" for marina services;
This case is an unusual one in that a prior opposition between the same parties resulted in the board's sustaining Phillips' opposition to the registration by Webb of the mark "6.66" for a rust and corrosion inhibitor, the board noting that that mark and "66" were "much too nearly alike to avoid a likelihood of confusion, mistake, or deception." Phillips Petroleum Co. v. Chas. J. Webb Sons Co., 150 USPQ 710, 712 (TTAB 1966). While the goods recited in the present application are slightly narrower in being limited to marine use, and a decimal point was used instead of a hyphen to separate the figures, appellee has not stressed the latter difference, and we find that the goods covered by the prior application are essentially the same as those described in the present application. Therefore, we take it as a premise that appellee could not have registered "6-66" for the goods in question here. The question is whether, by the addition of the words CRC MARINE FORMULA, the mark sought to be registered no longer so resembles "66" as to be likely to cause confusion as to source. We hold that confusion is still likely.
The record shows that Phillips' mark "66" is an old and very well-known mark for petroleum products. While the parties' channels of trade may vary somewhat, their goods are the type likely to be used by boat-owning consumers. Further, while Phillips does not have a registration of "66" specifically for rust or corrosion inhibitors, its cleaners and lubricants are sufficiently similar to rust and corrosion inhibitors that, if sold under the same trademark, confusion as to source would clearly be likely.
We admit that on first sight the mark CRC MARINE FORMULA 6-66 bears little resemblance to Phillips' mark "66." However, we must not be misled by considering Webb's mark only in its printed or typewritten form, with all the characters being of equal height. The drawing in the instant application shows the mark typed in capital letters, and under Rule 2.51(d) of the Trademark Rules of Practice this means that Webb's application is not limited to the mark depicted in any special form. In trying to visualize what other forms the mark might appear in, we are aided by the specimens submitted with Webb's application as illustrating "the mark as actually used." The specimen included with the application papers in the record shows the 6-66 portion of the mark much more prominently than the CRC MARINE FORMULA portion. Moreover, the 66 portion appears at a different level from the first 6. The specimen is quite similar to the label shown in exhibit A-4, introduced by Webb, which we reproduce below.
On a side panel of the specimen label, directions for use are printed, followed by the legend "CORROSION REACTION CONSULTANTS, Division of Chas. J. Webb Sons Co., Inc., DRESHER, PA." in letters approximately the size of those in the words MARINE FORMULA on the front panel.
What impression would be made on purchasers seeing the mark in this form? The prominence of the 66 portion of the mark is clear and in our opinion would lead many purchasers to believe that the product originated from the same source as the products sold and services rendered under the "66" mark of Phillips. The addition of the extra 6 and the hyphen has already been held not to avoid likelihood of confusion, and in the absence of some other apparent significance for the term 6-66 we find this conclusion inescapable. While we are aware that likelihood of confusion is not to be tested by dissecting the marks involved, we cannot avoid noting that the CRC MARINE FORMULA portion of the mark as used on the specimen label is so small as to be very likely to escape the purchaser's eye.
BALDWIN, Judge, (dissenting).
I disagree with the majority opinion. I fail to see where appellee's mark "CRC MARINE FORMULA 6-66" bears such resemblance to Phillips' mark "66" as to be likely to cause mistake or confusion or to deceive as to the source of the goods here involved. I would affirm.