*1 464 overweight. people 604; Krause, Cir., The ortho- in who 303 F.2d v. are Bucher 7

pedic physician cases, an- called 200 F.2d defendant 576. In such we have plaintiff’s quantum question damages counsel that pe- swered a held culiarly the you saying “Actually speaking province if jury. within are the of the patella, we don’t a true chondromalacia general, In same the matters con- very operate on often those.” sidered the determination of whether personal injury an award case is As hernia claimed as to the umbilical adequate as in the of when determination Keenan, injury by an the Dr. it is claimed to be excessive. Ulrich v. plaintiff’s physicians, that one testified Kiefer, (Mo.App.) S.W.2d 140. Gen- quite such a often hernia was seen erally, a verdict will not be disturbed heavy had had a number women who merely on account of the smallness the was additional medical children. There damages theory awarded or testimony point on the whether reviewing court would have awarded injuries resulted Suf- accident. 231, p. more. 15 Am.Jur. 664. § say, it to fice mony was substantial testi- jury Applying from which the could have de- the rules which have we very part stated, termined that a minor hereinbefore facts under the damages special case, claimed was incurred of this we cannot interfere damages by jury reason of the accident. award herein. urges appealed Plaintiff coun- from is defendants’ improperly prejudiced sel acted Affirmed. referring com- cause to two plaints case, asking damages in this one $125,000 $250,000; and the other for also, plaintiff defendants’ counsel asked presence jury in the did not she referring lawyers, have four different course, this case. Of defendants’ counsel should have known than to ask better questions. however, court, such The trial plaintiff’s objections did sustain to these INC., PRODUCTS, Maryland CARTER remarks and admonished defendants’ corporation, Plaintiff-Appellant, counsel. argues Plaintiff that the small amount COMPANY, FLEETWOOD an cor- Illinois jury of the verdict shows influ- was poration, McMahon, and Nelson J. against enced her defendant-counsel’s Defendants-Appellees. However, judge conduct. the trial who No. 14179. listened to the evidence at trials the two Appeals States United Court grant plaintiff’s did not motion for new Seventh Circuit. trial. We must assume that if trial June 1964. regarded court counsel’s er- conduct as ror, Rehearing July 8, prejudicial it was Denied 1964. error. actions, appeals In tort are fre quently prosecuted ground on the damages amount of awarded is excessive.

We have held whether such verdicts

should be sustained are within the sound discretion of trial court and should upon appeal

not be it disturbed unless affirmatively appears was the the verdict prejudice. result of bias or Thomas v. Pawley Cir., Company, S. H. Lumber

SCHNACKENBERG, Judge. Circuit Maryland Products, Inc., Carter cor- poration, plaintiff, appealed has of Fleetwood favor Com- pany, corporation, an Illinois and Nelson McMahon, defendants, J. an and order thereafter entered the district court findings to amend its of fact. plaintiff sought complaint In its an in- against junction upon defendants based competition, injury unfair to its business reputation, dilution of trademark1 its infringement and of said trademark. Laboratories, Wallace a division of leading producer is a of ethical drug products (those by physician’s sold prescription). nationally, It markets cluding Illinois, variety wide drugs, including preparations ethical appetite. acquired control Plaintiff acquisi- name Wallace in 1933 with its tion of Wallace Laboratories.

Wallace Laboratories name uses the as both a trademark and a trade Wallace identify name to itself as the source many drug products. its ethical These products, widely which have been ad- and for vertised sold decades under the great name, variety include Wallace tranquilizers, antidepressants, appetite estrogens. preparations control and through products These are distributed drugstores hospitals, and pharmacies throughout the United court, States. As found the district the name is established Wallace drug professions the medical and aas symbol high reliability. quality Dietary Super

Defendants’ Wallace wholly Mealz was introduced as a new Groen, Olds, A. P. Dean Gerrit Jerome product January 2, on 1960. It Groen, Hume, Gilson, Hume, Clement & form, dietary supplement powdered in a Chicago, Ill., plaintiff-appellant, for Wil designed consumption for in milk Hanaway, Storms, liam L. Clifford B. Easy in connection “An Low Calorie Breed, Morgan, City, York Abbott & New Weight High Control Plan Nutrition for of counsel. Reducing”. and Easier Defendants’ McKnight, Chicago, Ill., R. James directly sales of this are made appellees. lay public through mail order and HASTINGS, Judge, drugstores, department stores, Before Chief dime SWYGERT, stores, supermarkets SCHNACKENBERG and and similar retail Judges. Circuit outlets. uses on the Wallace (1963).

§1. Ch. Ill.Rev.Stats. prominently significant letterhead consider it We Fleetwood Dietary Super products parties of Wallace the labels this case were Mealz, name and to in the different both channels and in identify different it as “Distributed markets. Wallace *3 Company)”. (Div. of Fleetwood finding is a that there court made The any physician or that “no evidence Historically, use of defendants’ pharmacist in to that fact led believe was originated about 1920 name Wallace Dietary Super Fleetwood’s ‘Wallace Rogerson originated and when Wallace product plaintiff is of nor Mealz’ was a phonograph rec- a mail order conducted party any ever that either there evidence containing selling business, ord records any inquiries or orders for received weight-reducing instructions exercise party’s products.” court fur- other The Probably accompaniment. with musical no actual ther found that there has been weight-reducing 1936, in extended the he plaintiff’s confusion defend- between and program in to radio Chi- instruction a they products, ants’ com- because cago phonograph which, well as the as distributing petitive and for means by business, was known the Wal- record substantially promoting them are Thin to Method name and “Get lace plaintiff’s different. It concluded that slogan. Music” “ prescription trademark goods ‘Wallace’ for Rogerson’s Upon in his death drugs infringed and ethical is not widow the mail order record continued by Super trademark defendant’s ‘Wallace business, which became defendants’ Dietary dietary sup- for Mealz’ food she transferred whatever when plement", and that “is un- no basis Company. terest she to Fleetwood had law, der common the Lanham Act or the appliable enjoining Illinois for Statutes findings While district court its defendants’ of its use trademark ‘Wallace recognized plaintiff’s mark that “Wal- Super Dietary Mealz’”. favorably established lace” complaint that the court The concluded profession, medical and that defendant costs. We without dismissed should be dietai-y supplement its under marketed agree disposition the case this Super Dietary name WALLACE supported the law evidence and Mealz, plaintiff the court denied relief. judgment and, reason, for plaintiff It found that does not have a appeal taken was order this from which registration trademark from the United are affirmed. office, registered patent States but has Judgment pursuant in Illinois and Order affinned. to the “Wallace” chapter aforesaid the Illinois stat- Judge utes. (dissent- SWYGERT, Circuit ing). defendant also found that court compaixy predecessors used experts its have for testified Car- Two medical conjunction Dailey, Chair- name A. Dr. Paul ter Products. Wallace through Society physical use of exercises Medical man the Illinois State px*od- phonographic Nutx-ition, and related x-ecords in substance on Committee advertising reducing bread, wafers, and ucts such as defendants’ testified that Super Dietary sweat further would shirts since 1921. Mealz their Wallace dietary reputation injure found that in 1960 it offered business Carter’s supplement among they physicians food name Wal- under the be- because would Mealz, Super Dietary lace which emanated lieve that defendants’ registered pat- Wilson, plaintiff. was in the United States Dr. R. James January 23, specialist ent on office 1962. Its sales nutrition had worked who orders, supermarkets, Association, were mail tes- the American Medical grocery drugstores physicians stores and and were who tified that put “would wonder * * mail, newspaper product] secured out direct or this [defendants’ Jersey advertising. other means of consumer whether it was New Wallace * * * somebody product “Dyprin” or else primarily [Carter] their was to * * * physicians drug be would unfavorable stores. In that case thought Jersey they Wallace of New we said: put it out.” offered Defendants no con- portion de- “That substantial trary Thus, evidence. likelihood limited fendant’s somewhat distribu- physicians, confusion in the minds of represents sales tion its potential customers of as directly dispense physicians who product, the source of defendants’ as well bought it, and that it is often injury as the likelihood physician, issued reputation, clearly business was estab- do to assure elimination not serve lished. likelihood of confusion as to *4 the origin majority opinion points out that fac- the other The source which of precipitate.” no con- court found actual the district tors plaintiff’s and defend- between fusion disparity products The markets confusion, products. how- ants’ Actual pronounced was even more in Polaroid only necessary; ever, likelihood is not Inc., (7th Corp. Polaraid, 319 v. F.2d 830 Esther, Lady confusion need be shown. 1963). There, Cir. this court held Shoppe, Lady Esther 317 Corset Ltd. v. Ill.App. refrigeration a manufacturer of 165, A.L.R. 46 N.E.2d 148 systems enjoined heating should be Metropolitan (1943). Life 6 In Ins. Co. using the trade “Polaraid” because Co., Metropolitan F.2d Ins. 277 896 the of the likelihood of confusion with (7th 1960), Il- to the Cir. reference trade name “Polaroid” used manu- Act, ch. linois Trademark IIl.Rev.Stat. optical photo- facturer of graphic equipment. devices and 19-22, this court said: §§ Judge Major, speak- “It is established in Illinois ing court, disposed argu- well for the of the circuit that the decisions this parties’ products ment that the not were granted injunctive properly relief is sold to the same outlets or to same the involving decep- use of cases type grounds the of customers on the though tively similar names even argument this is against made traditional proof actual there is no confusion. charge competition unfair to is sufficient show the likelihood party and “it is without force where that confusion will and that adopts result the invented or coined trademark * * * might public be misled. or name of trade another.” This is so even competition there is no where In the instant case the trade names are plaintiff and between de- identical, products are similar. fendant.” Moreover, the likelihood of as confusion majority emphasizes the fact that The products to the source of the and the products parties of the are sold quality dilution of the distinctive through different in dif- channels and plaintiff’s trade name were established. though ferent Even markets. Carter’s my opinion In stronger present these facts an even products prescription are sold and de- injunctive case for relief under public fendants’ the Illinois statute than did Polaroid. prescription, without likelihood of There, this court said: resulting confusion dilution of “[The the distinctiveness of Illinois Trademark trade Act] * ** negated. Recently, name are not furnishes this the basis Sterling Drug (1) two court in causes Inc. v. of action: Lincoln if there Laboratories, Inc., (7th injury 968 exists likelihood F.2d Cir. to busi- 1963), reputation (2) held that ness likelihood confusion or is a origin products quality as to the source of dilution of of the the distinctive though Moreover, existed even the mark or “Dia- trade name. drug parene” aggrieved party was sold it normal relieves an proving competition channels without and the burden be- proving parties confu- or tween goods or to the source sion as

services. squarely falls within instant case The interpretation Illinois stat- of the

this

ute. opinion majority at- does not distinguish previous

tempt deci- they fact, In this court. sions of mentioned; any case cited nor indeed holding I support court. reverse.

would *5 LABOR RELATIONS

NATIONAL BOARD, Petitioner, CENTER, INC., FOOD

ECONOMY Respondent.

No. 14370. Appeals Court

United States Seventh Circuit.

May 22, 1964.