60 CCPA

#### GRAVEL COLOGNE, INC., Appellant, v. LAWRENCE PALMER, INC., Appellee.

Patent Appeal No. 8847.

United States Court of Customs and Patent Appeals.

Dec. 21, 1972.

William T. Bullinger, Cushman, Darby & Cushman, Washington, D. C., attys. of record, for appellant.

Armand E. Lackenbach, Mamaroneck, N. Y., atty. of record, for appellee.

Before MARKEY, Chief Judge, and RICH, ALMOND, BALDWIN and LANE, Judges.

ALMOND, Judge.

This appeal from the decision of the Trademark Trial and Appeal Board, 166 USPQ 62 (1970), involves the application of Lawrence Palmer, Inc., appellee, to register “ON THE ROCKS”1 for men’s cologne and after-shave lotion, alleging use since August 1963, and the opposition thereto by Gravel Cologne, Inc., appellant, registrant of “GRAVEL” for men’s cologne.2 For reasons hereinafter appearing, we affirm.

In essence here and below, appellant advances the position that the goods of the parties are identical and that appel-lee’s mark so resembles that of appellant as to cause confusion, mistake or deception within the purview of Section 2(d) of the Trademark Act of 1946 (15 U.S. C. § 1052(d)). Appellant asserted below that it had widely publicized the trademark ROCKS IN THE BOTTLE. On this appeal it, for the first time, asserts prior rights in the mark ON THE ROCKS based upon an application for alcohol label approval allegedly granted by “the Federal Government on March 29, I960.!’ Neither contention finds any support in the record in the form of competent evidence and will not be considered by this court.

Appellant’s evidence comprises a copy of its registration and an advertisement by Neiman Marcus, a department store, for a variety of men’s toilet*1398ries including one designated GRAVEL SUTTER’S CREEK A MAN’S PERFUME which appeared in the December 13, 1962 edition of the “Dallas Morning News.” Appellant asserts that this advertisement, introduced under Trademark Rule 2.123(c) “evidences use by opposer of a bottle of its ‘GRAVEL’, cologne containing rocks or stones.” With reference to this advertisement, the board took the position, correctly we think, that since it was introduced and relied upon for the truth of what it revealed, it constituted no more than hearsay. Its evidentiary scope and effect was to show no more than the promotion of the cologne “under the particular mark in that newspaper on the particular day the said newspaper issued.” In material part, the testimony adduced by appellee indicates that it was incorporated in 1966 and thereafter sold men’s cologne and after-shave lotion in bottles containing simulated ice cubes of plastic under the mark ON THE ROCKS.

The goods of the parties are identical, and appellant has clearly established prior use. The single issue calling for resolution here is whether appellee’s mark ON THE ROCKS so resembles appellant’s previously registered mark GRAVEL as to be likely to cause confusion or mistake or deception.

We adopt the board’s succinct and proper resolution of this issue stating and holding that:

> Opposer contends that “ROCKS” and “GRAVEL” are substantially identical in meaning but applicant’s mark is not “ROCKS”, it is “ON THE ROCKS”, a term having specific meanings which do not relate to the term “GRAVEL”.

> The term “on the rocks” is defined in “Webster’s Third New International Dictionary”, 1965, as meaning:

> a) “in or into a state of destruction or wreckage.”

> b) “in or into a state of bankruptcy or destitution.” c) “on ice cubes.”

It is apparent that applicant’s mark is intended to suggest the last stated definition since simulated ice cubes form part of the package for its cologne.

The marks “GRAVEL” and “ON THE ROCKS” have no similarities whatsoever and we conclude that there is no likelihood of confusion or mistake or deception.

The decision of the board is affirmed. Affirmed.

1

. Serial No. 245,713 filed September 19, 1966.

2

. Reg. No. 669,395 issued November 4, 1958 to a predecessor.