THE GEORGE W. LOFT COMPANY, INC., PETITIONER, VS. NGO GUAN AND DIRECTOR OF PATENTS, RESPONDENTS.

This is a petition for review of a decision and a resolution of the Director
of Patents.

Petitioner, George W. Luft Co., Inc. — a foreign corporation organized under
the lavs of the State of New York — is the owner of the trademark “Tangee”,
which it has allegedly used since February 28, 1928, and is covered by Certifi-
cate of Registration No. 2178-S of the Philippine Patent Office, dated February
21, 1950. On January 22, 1959, Ngo Guan applied for the registration of the
trademark “Tango”, which he claims to have used since June, 1958. Petitioner
objected thereto alleging that “Tango” is likely to be mistaken for “Tangee”,
upon the ground that the two trademarks are confusingly similar.

After appropriate proceedings the Director of Patents rendered a decision
overruling said opposition and granting Ngo Guan’s application. A
reconsideration of this decision having been denied, petitioner brought the mat
ter before this Court for a review of said decision and of the resolution
denying a reconsideration thereof.

The only issue for our determination is whether or not the “Tango” trademark
is confusingly similar with the “Tangee” trademark, as contended by petitioner
herein, as to be likely to be mistaken for the latter by the unsuspecting
public.^[1] Petitioner, which has the
burden of proving its contention, has not, however, done so.

To begin with, one of the factors essential therefor is whether or not there
is a general similarity in the appearance of the trademarks in
question, which can not be determined with reasonable certainty without a
physical examination and comparison thereof. Petitioner has rendered such
examination impossible, by not introducing any evidence whatsoever as to the
appearance of the “Tangee” trademark. What is more, such omission suggests that
its appearance is not analogous to that of respondent’s “Tango”, for, otherwise,
petitioner would not have failed to present a sample of its trademark, for
comparison with that of respondent Ngo Guan.

Moreover, the word “Tango” has a well established meaning, for it describes a
particular dance that is well known in the Philippines. In fact, respondent’s
label includes the picture of a man and a woman dancing. Again, “Tango” is used
by Ngo Guan for no other product than hair pomade, in which
petitioner does not deal. Upon the other hand, petitioner’s trademark is used
for specified chemicals, medical and pharmaceutical preparations— namely:
“lipstick, creme rouge, compact rouge, cleansing cream, day cream, night cream,
massage cream, face lotion, astringent, face powder, powder compacts, cosmetics
for lashes, brows, and halt, hair pencils, nail polish, perfumes, and toilet
waters — and it is not claimed that Ngo Guan uses or intends to use its “Tango”
trademark on articles of this kind.

WHEREFORE, the decision and the resolution appealed from are hereby
affirmed, with costs against petitioner, George W. Luft Co., Inc.

IT IS SO ORDERED.

Reyes, J.B.L., Barrera,
Dizon, Regala, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, and Ruiz
Castro, JJ., concur.