404 F.2d 997
Application of UNITED BISCUIT COMPANY OF AMERICA.
Patent Appeal No. 8045.
United States Court of Customs and Patent Appeals.
December 19, 1968.

Bair, Freeman & Molinare, A. W. Molinare, Chicago, Ill. (Robert C. Williams, Chicago, Ill., of counsel) for appellant.
Joseph Schimmel, Washington, D. C., (Raymond E. Martin, Washington, D. C., of counsel) for the Commissioner of Patents.
Before WORLEY, Chief Judge, and RICH, ALMOND, BALDWIN, KIRKPATRICK,* Judges.
WORLEY, Chief Judge.


1
The sole question here is whether an application to register "OPERA" as a trademark for cookies was properly refused by the Trademark Trial & Appeal Board1 on prior use and registration of "OPERA," with musical design matter, for use on wheat flour. We think it was.


2
That the two marks are virtually identical, there can be no doubt, and, since applicant concedes that


3
* * * While the channels of trade for Applicant's goods and the goods of said registration might likely be the same, that is, sold in the same stores * * *


4
we turn to the nature of the goods involved.


5
Granted, as appellant points out, the specific differences between cookies as a finished product on the one hand, and raw wheat flour on the other, we do not think those differences are necessarily controlling. The fact remains that they are foodstuffs, over the counter items, sold to the same type of purchaser and presumably through the same channels of trade. Under such circumstances, we think the average purchaser, on seeing the instant trademarks on the involved goods, would likely assume a common origin. We have not overlooked appellant's allegations dealing with lack of actual confusion. That is, of course, an element to be considered but, on the facts here, not controlling.


6
The decision is affirmed.


7
Affirmed.



Notes:


*
 Senior District Judge, Eastern District of Pennsylvania, sitting by designation


1
 Result reported at 150 USPQ 834


