Dentsply International Inc. and Dentsply Research &development Corp., Appellants, v. Uni Lac Corporation, T/a Lactona Corp., Appellee, 856 F.2d 202 (Fed. Cir. 1988)

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U.S. Court of Appeals for the Federal Circuit - 856 F.2d 202 (Fed. Cir. 1988) Aug. 22, 1988

Before NIES, PAULINE NEWMAN and MAYER,*  Circuit Judges.

NIES, Circuit Judge.


Dentsply International, Inc. and Dentsply Research & Development Corp. (Dentsply) appeal the summary judgment of the United States Patent and Trademark Office Trademark Trial and Appeal Board, dismissing Dentsply's opposition to the registration by appellee Uni Lac Corp. of TRU-FORM for artificial teeth, application Serial No. 471,687, filed March 22, 1984.

Having independently weighed the relevant factors established by the record, we reach the same conclusion as the board. Although the case is close, we agree with the board that there is no likelihood of confusion between applicant's and opposers' marks. Accordingly, we affirm on the basis of the board's opinion.

PAULINE NEWMAN, Circuit Judge, dissenting.

The issue is whether there is likelihood of confusion between the sources of goods bearing the mark TRU-FORM and those bearing the marks TRUBYTE, BIOFORM, or TRUBYTE BIOFORM. All these marks are applied to artificial teeth and related goods.

Dentsply's first use dates from 1930 for TRUBYTE, from 1942 for BIOFORM, and from 1950 for TRUBYTE BIOFORM; that of Uni Lac for TRU-FORM from 1984. Doubts on the issue of likelihood of confusion should be resolved in favor of the first entrant, particularly when the time gap is so great and the marks of the first entrant are well known. Specialty Brands, Inc. v. Coffee Bean Distributors, Inc., 748 F.2d 669, 671, 223 USPQ 1281, 1282 (Fed. Cir. 1984). The marks here at issue have a surface similarity that could deceive buyers who know the Dentsply products into believing that the source of TRU-FORM products is the same as the source of TRUBYTE BIOFORM products. See generally In re DuPont de Nemours & Co., 476 F.2d 1357, 1361, 177 USPQ 563, 567 (CCPA 1973). On facts similar to those at bar, the court in Parke, Davis & Co. v. G.F. Harvey Co., 141 F.2d 132, 60 USPQ 572 (CCPA 1944) found confusing similarity. I reach that result in this case, and would sustain the opposition.

 *

The original panel included Circuit Judge Davis, who died on June 19, 1988. Circuit Judge Mayer was assigned in his place. The panel has concluded that reargument is not necessary