Court of Customs and Patent Appeals March 29, 1973, Patent Appeal No. 8904 (Royal Crown Cola Co. v. Eskimo Pie Corp.)

PER CURIAM:

This appeal is from the decision of the Trademark Trial and Appeal Board, abstracted at 167 USPQ 293 (1970), dismissing the opposition of appellant, registrant of DIET-RITE for dietetic soft drinks and concentrates for making the same,1 to appellee’s application to register ESKIMO DIET BITE for frozen desserts, namely, ice milk, in the following stylized form:2

The critical issue lies