*1
*
* *
pute
by
of
wholly
goods;
fused
tbe use of tbe same trade-mark.
even
soap
The
mechanics’ hand
but one
phrase
who takes a
which is the com-
laundry soap
monplace
self-praise
is no less than the differ-
like 'Blue Ribbon’ or
laundry
shaving
ence
between
'Gold Medal’
cream
must
content
spe-
with that
soap.
Patents held in cial
field
Commissioner
labels
he
-with so undistinctive
* * * ”
proceedings
plaintiff’s
name.
interference
Milling
France
Co. v.
laundry
granulated
soap
use of
on
did Washburn-Crosby Co.,
Par
supra.
shaving
use of Par on
conflict with the
very narrowly
Unless
applied,
the word
by
Nyal
rul-
Company.
cream
“Par”
general
has such a
use and is such an
. ing
binding on
is not
Commissioner
originally descriptive term as would not be
has
courts,
prima
it is
facie correct and
any
indicative of
particular
goods.
maker of
* * * ”
argumentative weight.
Tale
Corp.
Electric
(C.
A.)
Robertson
C.
granted
Upon
facts the
this state of
court
F.(2d) 972.
injunction against appellant.
hold
an
Wo
The District
pro
Court was
correct
findings of the
record
sustains
tecting appellant’s common-law trade-mark in
court.
trial
the word
applied
“Par” as
to his business of
is called
to determine
This court
the marketing mechanics’
soap.
hand
was like
It
appellant’s common-law
question whether
wise correct
determining
appellant
“Par,” by
used on mechan-
trade-mark
him
guilty
was
competition
unfair
using
rights
soap, gave
trade-mark
ics’ hand
him
said trade-mark
granulated
to market a
or
prod-
soap
field
name
the entire
laundry
bar
soap,
operating
or in
under the
ucts.
firm name of the “Par Soap Company,” and
injunction
properly granted.
statutory copyright
patent
or a
Unlike
Affirmed.
invention,
confers on its
an
trade-mark
right
gross
large.
owner no
or at
United
Drug
Co.,
Co. v. Theodore Rectanus
248 U.
S.
39 S. Ct.
tors of name phrase. “Par” word would not come within Judge, dissenting. Circuit STONE, original of fanciful the class words. It is expression sug- a common which has come gest any particular merit and not business. strange new, who devises a “One 'catch- ing’ word to wares often describe his by timely prevented has suit others from tak- ing gild his word or set words re-
*Rehearing July 9, denied 1934. *2 eleven-ounce, also included an flannel cotton husking glove, 311, known as No. similar product 376, defendant’s No. both of which gloves per were at $1.50 and mittens Neb., Lincoln, and Aitken, M. of Philip pair. dozen commodities Above-mentioned (Woods, Ill. Barrett, Chicago, Oliver R. of were all made of the best Eastern Aitken, Neb., on Lincoln, Woods & and in practically flannel all the same were appellant. brief), for workmanship and In construction. Febru- Lincoln, (Stew- Stewart, Neb. ary, Don 1930, special W. the defendant announced a Lincoln, Neb., Whitworth, of art, husking Stewart & cotton flannel known as No. mitten brief), appellee. on the 200, special husking and the cotton flannel glove 300, known as which it offered No. SANBORN, Circuit STONE and Before price sale sold per at the and dozen of $1.32% WYMAN, Judge. Judges, District and pair. special gloves These and mittens were appearance similar in and construction WYMAN, Judge. District regular products defendant’s as Nos. known in District action was instituted This 734, they 376 and respectively, made but were Payne by the Glove Com- of Nebraska Court cheaper grade of a as material known Plaintiff, Boss pany, Corporation, as flannel, employed Southern the workmen in Corporation, as Manufacturing Company, a their expert construction were less than those alleged Defendant, damages to have to recover regu- who worked on the manufacture of the company plaintiff as sustained been products, they lar in- rigidly and were less alleged result of certain spected. All the salesmen of the defendant purchasers of price certain between different company supplied samples were with of both busking husking gloves cotton fabric and higher priced products and provisions mittens violation of the priced products, spe- or lower and the Clay- Congress commonly as the act of known priced gloves cial or lower and mittens 730). (38 ton Act Stat. For convenience 1930, March, offered sale in the month of parties plaintiff will be referred as and tliroughout to wholesalers country, and as in the court below. Lincoln, sales were made to wholesalers in as disclosed the rec- essential facts Neb., and other vicinity, cities some ord are follows: Plaintiff is Nebraska of whom were customers of plaintiff com- corporation, principal place with its of busi- pany. Lincoln, Neb., ness engaged at where it is After placed defendant had its husking the manufacture of cotton fabrie priced gloves lower and mittens on the mar- working gloves and sale in the mittens fór ket, plaintiff price reduced the prod- on its adjoining state of Nebraska and states. De- ucts Nos. per 376 and 311 to dozen $1.32% corporation, engaged an fendant is Illinois pair, whieh resulted plain- financial loss to in a similar business, principal place tiff. Kewanee, of business at the state of Illi- case jury, was tried to at and nois, operates and it also several branch fac- conclusion of the evidence the defendant States, tories points at the United moved for a directed verdict in its favor products are whieh sold offered ground insufficiency evidence, throughout for sale the United States. motion whieh was denied the court and Among products of the defendant exception allowed the defendant. The company- twelve-ounce, two-thumb, jury returned a verdict plain- in favor of the seam, size, nap outside, standard welt knit tiff, ease comes to this court wrist, husking mitten; cotton flannel also peal judgment from the thereafter entered. glove husking an eleven-ounce of similar ma- assignments are several construction, terial which said error, question upon the real which the ease December, 19291, mittens were announced in is by assignment must turn that raised er by 193Q part the defendant as a of its line for the 1, ror challenges No-. whieh the aetion season, 734, as Nos. 376 respec- overruling trial court in defendant’s motion tively, pair. at a per $1.55 dozen At for a directed verdict. If the record discloses time, about plaintiff the same announced its any substantial evidence support the ver line list for the of 1930, season jury, diet of the then there was no error in twelve-ounce, which included a cotton flannel, ruling complained of. husking
two-thumb mitten known as No. similar as to material construction to the As indicated above, aetion up- is básed product defendant’s alleged No. 734. Plaintiff’s an violation line on of section 2 of the so- Hartmann, products testimony Mr. 13, USCA), Clayton (title § Act called company, president and sev- fol- reads as applicable, in so far which, husking eral flannel other dealers in cotton lows: *3 mittens, gloves and after ex- whom, each of en- any person unlawful “It shall be samples amination of the comparison and such commerce, course of gaged in the in special 300, regular and Nos. 200 and the indirectly to dis- commerce, directly or either that 376, expert Nos. 734 and as an testified purchas- price in criminate between appeared to the Nos. and 300 so-called 200 commodities, commodities which ers of they were, opinion in the same or that the be the or within consumption, resale use, sold for witness, or was no identical, of the that there Territory any thereof States or United difference so as the witness could observe * * * far such discrimi- the effect of where regular between them and the 734 and Nos. compe- substantially lessen to nation 376. In as to the physical view the facts any monopoly in a to create or tend tition difference in material and construction be- nothing Provided, That line commerce: special tween the 200 Nos. and and the 300 discrimination prevent shall herein contained regular product, the undis- disclosed commodities purchasers of price in between puted record, in opinion evidence the the tes- grade, qual- in of differences the account timony of the several witnesses to the effect commodity sold, or ity, quantity of the or that there was no two only allowance difference makes due that regarded commodities eannot as a substan- or transportation, selling or cost of in the evidentiary showing. tial undisputed The same or differ- price in in the discrimination physical conclusively facts show that there good meet in faith to ent communities made grade was a in quality difference and further, That competition: provided And gloves, the two sets of in and, mittens and per- prevent shall nothing contained herein price view of the fact that difference in wares, mer- engaged selling goods, or in sons only pair, per eents which dozen 22% selecting their in from chandise commerce pair, would amount to less than 2 eents in and Me in bona transactions own customers absence of substantial evidence to the restraint of trade.” in not contrary, the difference between the commo- is wheth question for determination justify dities would the discrimination in any substantial or not the record discloses er price. support in favor of the evidence to a verdict there in Is substantial evidence the record plaintiff. price which tends to in show discrimination Passing present question as to purchasers? A between careful examina- fact, any was, dis- whether in ques- not tion of the record us that this convinces purchasers, in does negative. crimination between must tion be answered in the any substantial disclose the record the evidence-shows that the Boss Manufac- evidence finding no of the that there was support turing. special in Company offered and sold grade be- quality in Lincoln, sufficient difference Nos. 200 and 300 wholesalers at to special products regular Omaha, and to City, points and in tween Kansas other in under the justify territory a discrimination trade it company, undisputed evi- proviso of the statute? The also shows that each of the defendant’s sales- regular conclusively provided samples dence shows that men was both the gloves, regular special numbers; and 734 and re- and mittens Nos. of said all grade sale, spectively, equal were made of the of commodities were offered for and best flannel; special given prospective and opportunity purchas- Eastern that the mittens to all buy gloves, Nos. were respectively, any ers or all of said to and mit- flannel,' nothing upon made of Southern is an infe- is in the which tens. There record cheaper grade any rior flannel, to a conclusion that there was price, base flannel; ‘pro- less durable Eastern that discrimination between than the tending special gloves spective purchasers. of the mittens and Evidence to wrists 200 and 300 poorer tubing; were made of a lot of knit the sale Nos. to a whole- show at products Lincoln, Neb., per made work- at dozen were saler $1.32% sell 734 and 376 experience; inspec- pairs, men less and that the Nos. to another point rigidly at some other products tion of these made wholesaler the United was not inspection regular gloves per pair, dozen would not, $1.55 as was the States at products only proof mittens. The that the evidence in the record absence same, way substantially purchaser of any said support which could be permit- commodity higher was not finding grade of no quality difference price, sup- the lower purchase so-called between the ted finding port being of a discrimination between dence. This true, it useful in a by the purchasers condemned statute. dissent discuss the minor issues more than to state I find no challenges basis tor the being There evidence substantial petition or of the admissions of evi- be- tending to show record dence. defend- purchasers, denial of the tween motion for a constitutes attacks sufficiency ant’s directed verdict tho judg- necessitating (1) reversal of the evidence are error that it failed to show dis- prices crimination pur- ment. between different chasers; (2) that it showed differences in we foregoing conclusions view of the In quality gloves, justifying remaining unnecessary consider the deem *4 price differences; (3) that it failed to show assignments of error. the effect would lessoning competition be reversed, and judgment is therefore or tendency to create monopoly. ease remanded. the (1) As to in prices be- tween different customers, there was evidence Judge (concurring). SANBORN, Circuit which, by if jury, believed justify the would insufficient agree was that the evidence I a conclusion glove that cheaper the be- was that there was justify the conclusion to ing only offered to appellee customers of with special gloves the the the statement that there only was a limited the gloves defendant to offered the regular quantity purchases and that must be made that the defendant the conclusion trade immediately. The natural effect of this would gloves the solely to the offered had up customers, to stock resulting such territory plaintiff or in the of the customers loss of business appellee, to regular while the plaintiff most they the the would do where appellant customers of were not informed generally. harm, trade How- and not to the glove cheaper this and would pay continue to ever, judgment should reversed I the think the substantially the same insufficiency evi- the only because of glove. appellant’s Where own customers did to territorial discrimination. establish dence out, find sources, from other cheaper the established, then I think that been Had that glove, they it seems get it, could but that might from found the evidence jury have the glove was offered pushed upon to and pre- specials differences between the the that purchasers ferred line ap- —customers regulars indi- were so insubstantial as to the pellee. specials being to the offered cate that (2) Much of tho evidence in the purpose in- record is portion of the trade the question devoted to the of whether cheap- the plaintiff’s juring tlie and thus less- business glove ($1.32%) er was grade different in ening competition. es- While circumstances quality higher glove from the ($1.55). create strong the evidence sus- tablished I cannot the read evidence as to this being as that the picion put have out undisputed. appellant That of special gloves purpose for the in- tended to these many show as in grade differences—such the juring plaintiff’s business, the as the used, grade of flannel in the they tubing, of wrist believes, necessarily inconsistent not in the of material hypothesis used the thumb gloves that these with patch, in care and costs generally were offered manufacture trade, and, if (cutting, stitching, they offered, then, character of workmen, were so though even of inspection). appellee slight, However, differences were coun- was no viola- tered evidence Clayton Act, experienced from persons purchasers tion since all gloves that the two were substantially opportunity purchase had tho the same same. This raised a price. testimony. at the same conflict vital defect plaintiff’s case, I see it, is in its failure (3) competition As to monopoly, question to take of territorial discrimina- pellee appellant showed was largest out of speculation tion realm and con- its kind; appellee concern of was a jecture. I therefore concur. small concern with more limited trade terri- tory; cheaper glove that the was offered STONE, Judge Circuit (dissenting). appellant appellee’s customers at a amI unfortunate not being appellee’s below cost able to see of manufacture; way tbe evidence in same majority this offer was concentrated on such custom- appellant court. things ers. If these bo (as jury might attacks the true sufficiency petition be), only also natural, the admis- find them but the pieces sion several of evidence, inevitable, result the main would competi- be to lessen controversy here is sufficiency by driving tion appellee evi- out of business and create thereby extent tend also and to that monopoly appellant. sufficient evidence think that the I attacked, that there respects in judg- trial,
was no error affirmed. ment should be CORPORATION PETROLEUM SHELL SCULLY.
No. 7263. *5 Appeals, Circuit. Fifth Circuit Court 30, 1934. June Berry, Mo., Louis, of St. and Ni- C. P. Orleans, La., Callan, New
cholas pellant. Milling, R. Orleans, La., C. New appellee.