26 Del. Ch. 140 | New York Court of Chancery | 1942
This case is before the court on a bill filed by The Coca-Cola Company to enjoin alleged trade-name and trade-mark infringement' by the Nehi Corporation, the defendant. Other related acts of unfair business competition alleged to have been committed by the defendant company are also sought to be enjoined.
Dr. John S. Pemberton, of Atlanta, Georgia, first manufactured and sold Coca-Cola, under that trade-name, written in script letters, under which appeared a paraph or flourish, as early as 1886; and since that time it has been manufactured and sold under the same trade-name by his individual and corporate successors. That name was registered as a trade-mark, in the United States Patent Office, under the various Trade-Mark Acts, in 1893, 1905, 1927 and 1928, and is still registered in that office.
Coca-Cola is perhaps the most popular soft drink on the market, and has had phenomenal sales in this and other countries for many years. Ordinarily, it is sold to the public through licensed bottlers, in plain six ounce bottles, and has a dark brown color which is caused by the use of some mixture of caramel. The bottles in which it is sold have a metal cap, on which the usual trade-name or trade-mark “Coca-Cola” appears in white letters on a red background.
Royal Crown Cola, or Royal Crown RC Cola as it is sometimes called, is sold by the defendant, or by its licensed bottlers, in twelve ounce, clear glass bottles, which differ in size, shape and appearance from the distinctive six ounce bottle used by The Coca-Cola Company. It is occasionally advertised as “RC Cola,” but that designation alone is never used on either the labels on the bottles or on the caps. Nehi Cola and Par-T-Pak Cola may have been sold at times in bottles of a different size and type; but that all of these beverages are Nehi products is indicated by words and letters appearing in the glass of each bottle, or on the labels. The words “Royal Crown” appear at the top of the label on each bottle of that drink. The name “Cola” appears at the bottom, and above that word are the letters “RC” appearing on a truncated pyramid. The wording and its arrangement on the bottle cap is similar to that appearing on the label, except in some instances the letters “RC” are omitted from the cap. The product of each company is sold at five cents a bottle. Both the complainant and the Nehi Corporation are spending large sums of money annually advertising their drinks by the use of roadside and other large and small signs, by radio broadcast campaigns, in newspapers, magazines, and otherwise. That general advertising policy had been followed by The Coca-Cola Com-
The basic question is whether Royal Crown Cola, Royal Crown RC Cola, RC Cola, Nehi Cola and Par-T-Pak Cola, the various names under which the defendant’s beverages are being advertised and sold, are deceptively similar to the complainant’s trade-name and trade-mark “Cola-Cola”. That largely depends on the right of the defendant corporation to use the word “cola” in a denominative sense in selling its drinks. Its right to use that word in a descriptive sense is conceded. The use of a similar color to Coca-Cola, together with the word “Cola”, is, however, said to be an accompanying instrumentality of deception, of peculiar importance, and is likewise sought to be enjoined. The complainant company also seeks to enjoin the continuance of other related acts of alleged fraudulent and unfair business competition, such as suggestions by defendant’s sales agents that Royal Crown Cola, when sold by the glass, can be profitably passed off for Cola-Cola. Various modes of advertisements are also complained of as being deceptive. But perhaps the most of these acts are mainly relied on as corroborative evidence compelling the inference that the use of the word “cola” by the Nehi Corporation is for the real purpose of deceiving the public, and to permit it to profit by complainant’s well established business good-will in the trade-name “Coca-Cola”. Ordinarily, the proper function of a trade-name or trade-mark, adopted by a manufacturer or merchant, is to identify the real origin and source of the goods to which it is affixed. Hanover Star Milling Co. v.
In Caron Corporation v. Conde, Limited, supra [126 Misc. 676, 213 N. Y. S. 736], the court aptly said:
“A phrase or a combination of words may be entitled to absolute protection, while the use of its component parts separately may be open to every one”.
But to constitute trade-name infringement, it is not necessary that the similarity in the name complained of be such as to deceive only the cautious purchasér. Pepsi-Cola Co. v. Coca-Cola Co., supra; Allen v. Walker & Gibson, (D. C.) 235 F. 230. It is usually sufficient if the similarity is such that it is likely to deceive the ordinary purchaser. Allen v. Walker & Gibson, supra.
Trade-name or trade-mark infringement is a narrower term than unfair competition, but it is a species of it. Hanover Star Milling Co. v. Metcalf, supra. Any unfair conduct, the natural and probable result of which is to permit the goods of one person, of the same kind, to be passed off for those of another, is usually unfair competition in some form, and in a proper case will be enjoined. Warner & Co. v. Eli Lilly Co., 265 U. S. 526, 44 S. Ct. 615, 68 L. Ed. 1161; Yale Electric Corp. v. Robertson, supra. Whether trade-name or trade-mark infringement, or some other variety of unfair competition, exists in a particular case is always a question of fact, depending on the circumstances.
Ordinarily, in determining that question the following factors must be considered:
“(a) the degree of similarity between the designation and the trade-mark or trade name in
“(i) appearance;
“(ii) pronunciation of the words used;
“(iii) verbal translation of the pictures or designs involved;
“(iv) suggestion;
“(b) the intent of the actor in adopting the designation;
“(c) the relation in use and manner of marketing between the*151 goods or "services marketed by the actor and those marketed by the other;
“(d) the degree of care likely to be exercised by purchasers.”
§ 729 Restat. Law of Torts.
In the same section the following pertinent comment on paragraph (a) appears:
“Similarity of appearance is determined on the basis of the total effect of the designation, rather than on a comparison of individual features”.
See also Pepsi-Cola Co. v. Coca-Cola Co., 1940, 1 Dom. L. R. 161.
Moreover, when other distinguishing features clearly appear, a trader is not ordinarily guilty of infringement if he uses a descriptive or generic word as a part of his trade-name, even though the same word has already been used by a competitor. Dixi-Cola Laboratories, Inc., v. Coca-Cola Co., supra; Delaware & Hudson Canal Co. v. Clark, 13 Wall. 311, 20 L. Ed. 581; S. R. Feil Co. v. John E. Robbins Co., (7 Cir.) 220 F. 650; American Brakeshoe & Foundry Co. v. Alltex Products Co., supra; Standard Paint Co. v. Trinidad Asphalt Co., 220 U. S. 446, 31 S. Ct. 456, 55 L. Ed. 536.
In considering this question, the court in Delaware & Hudson Canal Co. v. Clark, supra [13 Wall. 311, 323, 20 L. Ed. 581], aptly said:
“Nor can a generic name, or a name merely descriptive of an article of trade, of its qualities, ingredients, or characteristics, be employed as a trade-mark and the exclusive use of it be entitled to legal protection”.
This is because such a name or word is in the public domain, and with proper distinguishing features can be used by any one without being guilty of fraud or deception. Delaware & Hudson Canal Co. v. Clark, supra; Standard Paint Co. v. Trinidad Asphalt Co., supra; Nims on Unfair Competition & Trade-marks, 110.
The word “cola” is one-half of the complainant’s trade-name. That company, therefore, claims that its use by the Nehi Corporation in its trade-names makes them deceptive
In Pepsi-Cola Company v. Coca-Cola Company, 1940, supra, the court said:
“No doubt each of the words (Coca-Cola) is a descriptive word, but we are not prepared to say that a trader cannot join the words into a compound, which written in a peculiar script constitutes a proper trade-mark.”
The Nehi Corporation concedes this; but nothing more. It claims that the word “cola”, as used by the complainant, has always had a certain descriptive significance, and cannot be exclusively appropriated by any one; to do so would constitute a monopoly. Delaware & Hudson Canal Co. v. Clark, supra.
It also claims that the word “cola” has now become generic of a well-known type of' drink.
In United States v. Coca-Cola Company (United States v. Forty Barrels and Twenty Kegs of Coca Cola), 1916, 241 U. S. 265, 36 S. Ct. 573, 581, 60 L. Ed. 995, Ann. Cas. 1917 C. 487, the court said:
“In the present case * * * it could not be said as matter of law that the name [Coca-Cola] was not primarily descriptive of a compound with coca and cola ingredients, as charged * * *; the claimant has always insisted, and now insists, that its product contains both.”
In Coca-Cola Company v. Koke Company of America, 254 U. S. 143, 41 S. Ct. 113, 114, 65 L. Ed. 189, the court said:
“ ‘Coca-Cola’ probably means to most persons the plaintiff’s familiar product to be had everywhere rather than a compound of particular substances.”
But that is not the real question to be determined. Moreover, that statement was necessarily based on the facts before the court.
In Coca-Cola Company, v. Koke Company, the real question was whether the word “koke” was used by the public as a name for Coca-Cola. Secondary meaning was also
But, under the pleadings that company concedes that no such question is involved here. Furthermore, there is no direct evidence that “Coca-Cola” was ever known as “Cola”. The court emphasizes that point in Dixi-Cola Laboratories, Inc., v. Coca-Cola Company, (4 Cir.) 117 F. 2d 352.
A brief history of the cola nut, when considered with various other evidential facts, including declarations and even admissions by officers and agents of the Georgia predecessor of the complainant company, seem to justify the defendant’s contention that the word “cola” in the complainant’s trade-mark has always had some descriptive significance. Cola nuts are the seeds of a fruit which grows on trees native to tropical West Africa, but which may have been transplanted to some other tropical countries. They have a dark brown color, and are about the size of an ordinary horse chestnut; but the extract made from them seems to be almost colorless. They are said to contain a large amount of caffeine, and their tonic and stimulant properties seem to have been known to the African natives for centuries. Literature indicates that cola nuts have been used by them in various ways, for countless generations; among others, in the making of a drink mixed with milk and honey. When roasted, cola nuts have been sometimes called “Soudan Coffee”, and long prior to 1886 published articles had predicted that they might ultimately be used in making a substitute for tea and coffee. The word “cola” appeared in English dictionaries and encyclopedias as early as 1856, and in the United States as early as 1875; and the fair inference is that in subsequent years it became increasingly better known. The properties of the cola nut were discussed at some length in a French article published about 1832. After certain experiments were made in England in 1865 and the results were published, other experiments and published articles referring thereto multiplied. Many of these articles
The first Coca-Cola trade-mark registration under the Act of February 20th, 1905, was under the ten year provision of Section 5, 15 U. S. C. A. § 85, which permitted the registration of a “descriptive” mark by one who has made actual and exclusive use thereof for ten years next preceding the approval of the Act. The complainant’s booklet of 1901, entitled “What Is It?—Coca-Cola—What It Is”, discussed, the qualities of the cola nut and its presence in Coca-Cola. It also pointed out that Coca-Cola had the “stimulating and enlivening, reviving properties of the extract from the celebrated African cola nut.” It describes the tree and the “brownish-yellow fruit” grown thereon in some detail. It stated that “Kola Nuts” were brought into the United States just before Coca-Cola was originated” and at that time the product of the Kola nuts, as it was “used in the manufacture of Coca-Cola cost $20.00 per pound.” In 1923, in Coca-Cola Company v. Koke Company, supra, the solicitors for the complainant, in their reply brief, admit that both Coca and
In Coca-Cola Company v. Williamsburg Stopper Company, supra, the question was whether the trade-name “Espo-Cola” was confusingly similar to Coca-Cola. The court said “Cola is admittedly a descriptive word in which complainant is entitled to no special or exclusive rights.”
In Moxie Co. v. Noxie Kola Co., supra [29 F. Supp. 170, the court said: “ ‘Kola’ is a purely descriptive term. It signifies the Cola nut or an extract of it.”
In Fowle, et al., v. Miner’s Fruit Nectar Company, supra, in which it was contended that the trade-name “CitroCola” infringed the trade-name “Coca-Cola”, the court said:
“There is evidence from both complainants and respondents to the effect that the term ‘cola’ had been commonly used in a two-word descriptive name for beverages to indicate the presence of cola nuts as an ingredient.”
Moreover, the evidence also justifies the conclusion that the word “cola” has now become the generic term for a well-known type of soft drinks which have a characteristic taste and color somewhat resembling Coca-Cola, and of which that company is but one of many manufacturers. Many witnesses produced by the Nehi Corporation so testified. Witnesses produced by the Coca-Cola Company, on the other hand, denied that there was any such well-known type of beverages. The defendant’s witnesses were, perhaps, for the most part, officers of that company and its licensed bottlers, but other evidence seems to corroborate their statements. Hundreds of such so-called cola drinks have been on the American market, at various times, for many years. This suit was brought in September of 1939, and about that time 250 of them were sold under trade-names containing the word “cola” or “kola”. With a few exceptions, all of these drinks had a brownish color, resembling coca-cola. A witness testified that in August and September of 1939 he had purchased in Georgia and Florida alone no less than 27 beverages in which the word “cola” or “kola” appeared in the trade-names used. A few of such names were registered in the United States’ Patent Office under Section 5 of the Congressional Act of February 20th, 1905, which permitted the registration of a descriptive mark by one who had actual and exclusive use thereof for ten years next preceding the approval of. that Act. Many more were registered as purely descriptive marks under the TradeMark Act of March 19th, 1920, 15 U. S. C. A. § 121 et seq. Prior repeated acts, and even admissions, by the Coca-Cola Company are wholly inconsistent with its present position
The trade-names of drinks containing the word “cola” have been repeatedly, and almost continuously, advertised for many years in newspapers and other publications in the United States. The existence of the type of drinks known as “cola drinks” has been recognized in various United States Government publications. Dictionaries define the word “cola” as being a type or class of beverages.
Pepsi-Cola was first sold as early as 1896; was registered in the United States Patent Office in 1903, and is still being advertised and sold in considerable quantities. Lime Cola was registered in the United States Patent Office in 1916; was advertised in various publications as early as 1917, and is still being sold. The complainant company apparently sought to enjoin its sale under that name in an infringement suit, but that litigation was abandoned in 1925. Roxa-Kola came on the market as early as 1909. In 1929, the complainant company sought to enjoin its sale under that name, but the suit was dismissed after trial. CitroCola was first manufactured in 1895, and a suit by one of the complainant’s licensees in 1909, seeking to enjoin the use of that name, was unsuccessful. Nehi Cola has been advertised and sold under that name since 1926.
The complainant company points out that only nine beverages, containing the word “cola” in their trade-names, were advertised for ten years prior to the advent of Royal
In the reply brief filed by the solicitors for the Coca-Cola Company in 1923 in Coca-Cola Company v. Koke Company., supra, it was expressly and repeatedly admitted that there was a large and well-defined class of soft drinks on the market, known to the public and the trade as “cola drinks”. They admitted that there were then some 75 or 80 beverages of that type being sold. It seems unnecessary to quote at length from this brief, but it contains repeated admissions of facts pertinent to this question. It may be proper to point out, however, that it stated, among other things, that
“They (cola drinks) were not classified as soda water or root beer, or lime juice, or sarsaparilla, but as cola drinks. They had a taste and flavor of their own as tea and coffee and wines and liquors have, each its own taste and flavor, and among these there might be differences in the same class. And Coca-Cola was the prototype of its class.”
The testimony of Mr. Hirsch, a director of the Coca-Cola Company, in the proceedings in which the registration of the name “Chero-Cola” in the United States Patent Office was opposed, is also in sharp contrast with the present position of the complainant company. In response to a question relating to the policy of the company toward the registration of other marks containing the word “cola”, he said:
“If we did (oppose registration) then we thought that those names that did-have cola in them infringed Coca-Cola. If we did not oppose them, we did not think they infringed Coca-Cola, taking the name as a whole.”
Conceding that opposition proceedings in registration cases were not provided for under all of the Federal TradeMark Acts, the repeated and continued use of the word “cola” in registered marks, when considered in connection with other facts, has some evidential value, when public deception is the question involved. When opposed, registrations of numerous names,containing that word were refused
In Coca-Cola Co. v. Keen, supra, the decree entered provided:
“It is understood, however, and agreed that the defendant may-use the name ‘Keen’s Cola’, written in a different form of script from that so long used by the plaintiff in writing the name ‘Coca-Cola’.”
In Coca-Cola Company v. Gay-Ola Company, supra [211 F. 945], the complainant company consented to the use of the descriptive words “The Improved Cola”.
Furthermore, on October 30th, 1923, a contract was entered into between The Coca-Cola Company and the Chero-Cola Company, a predecessor of the defendant, which prohibited that company from using the word “cola” in its trade-name, Chero-Cola. It was expressly agreed, however, that the Chero-Cola Company could describe its product as “a cola beverage”, “a perfect cola beverage”, or by some other like descriptive term, not a part of its trade-name. This contract did not prohibit the use of the word “cola” in any trade-name not confusingly similar to Coca-Cola. The generic character of the word “cola”, as applied to soft drinks, has been recognized by the courts in numerous cases. Dixi-Cola Laboratories, Inc., v. Coca-Cola Co., supra; Pepsi-Cola Co. v. Coca-Cola Co., 1940, 1 Dom. L. R. 161; Coca-Cola Co. v. Carlisle Botting Works, (D. C.) 43 F. 2d 101, affirmed (6 Cir.) 43 F. 2d 119; The Coca-Cola Co. v. Tip
In Pepsi-Cola Company v. Coca-Cola Company., supra, the court aptly said:
"The plaintiff does not, and, of course, could not claim any proprietary right in the word ‘cola’, standing alone. None the less, it is plain that the objection of the plaintiff really goes to the registration by any other person of the word ‘cola’ in any combination for a soft drink. If such objection is allowed, then the plaintiff virtually becomes the possessor of an exclusive proprietary right in relation to the word ‘cola’.”
Substantially, the only evidence before the court was that the word “cola” had been used in numerous other registered trademarks. In view of the contention made, the court’s statement might have been broader than necessary, but, when applied to the contentions and evidence in this case, it correctly defines the complainant’s rights.
In S. R. Feil Company v. John E. Robbins Company, (7 Cir.) 220 F. 650, the court held: That the name “Sal Tone” did not infringe “Sal-Vet”; the word “Sal”, meaning salt, was descriptive of the principal ingredient of both products.
In Standard Paint Company v. Trinidad Asphalt Company 220 U. S. 446, 31 S. Ct. 456, 55 L. Ed. 536 on which the Feil case was largely based, the court held that “Rubbero” did not infringe the name “Ruberoid”. Both products were used for roofing. “Ruberoid” contained no rubber, but, because of its similar qualities, it was held to be a descriptive and generic word. See also American Brake Shoe & Foundry Co. v. Alltex Products Corp. (2 Cir.) 117 F. 2d 983.
The complainant company has been diligent in attempting to protect its trade-name, and has brought numerous infringement suits during the last thirty years, in many of which it was successful. Nashville Syrup Co. v. Coca Cola Co., (6 Cir.) 215 F. 527, Ann. Cas. 1915 B, 358; Coca
Since the complainant company never had the exclusive right to the use of the word “Cola” alone, no question relating to the abandonment of rights is involved.
The Nehi Corporation further contends, however, that in any aspect of this case “a designation, which is initially a trade-mark or trade-name, ceases to be such when it comes to be generally understood as a generic or descriptive designation for the type of goods in connection with which it is used.” Section 735(1) of the Restatement of the Law of Torts lays down that rule.
It is said that the real problem is what the word or name means to the buying public when the infringement suit is
“The adoption of the word ‘cola’ to characterize a class of drinks thus came about very naturally, to some extent with the consent of the Coca-Cola Company * * * and to a greater extent because in the course of events it could not be prevented.”
Among other cases, the court cited DuPont Cellophane Co. v. Waxed Products Co., (2 Cir.) 85 F. 2d 75; Bayer Co. v. United Drug Co., (D. C.) 272 F. 505; Kellogg Co. v. National Biscuit Co., 305 U. S. 111, 59 S. Ct. 109, 83 L. Ed. 73; Singer Mfg. Co. v. June Mfg. Co., 163 U.S. 169, 16 S. Ct. 1002, 41 L. Ed. 118; Ford v. Foster, [1872] L. R. 7 Ch. App. 611.
On the other -hand, the complainant company claims that no such rule should be applied when the original validity of a trade-name is conceded, and when the original user has been diligent in endeavoring to protect its rights. Saxlehner v. Eisner & Mendelson Co., 179 U.S. 19, 21 S. Ct. 7, 45 L. Ed. 60; but see Saxlehner v. Wagner, 216 U.S. 375, 30 S. Ct. 298, 54 L. Ed. 525. It further claims that to hold otherwise would, necessarily, make the rights of the parties depend on the number of unlawful and unfair acts that had been committed by competitors; that ordinarily such evidence should not appeal to a court of equity (Ford v. Foster), and that, in all of the cases cited in the Dixi-Cola case, some measure of relief was granted. Moreover, in all of those
Conceding that the Nehi Corporation is attempting to profit by the known popularity of cola beverages, including Coca-Cola, that, in itself, is not unlawful. Saxlehner v. Wagner, 216 U.S. 375, 30 S. Ct. 298, 54 L. Ed. 525; Coca-Cola Co. v. Carlisle Bottling Co., (D. C.) 43 F. 2d 101, affirmed (6 Cir.) 43 F. 2d 119. Whether the defendant is guilty of trade-name infringement is the question.
Thirteen witnesses, from the City of Wilmington, testified that the word “cola” meant to them a product of the Coca-Cola Company; they were under the impression that Royal Crown Cola, though sold in a much larger and a different type of bottle, was a very different trade-name label, was merely a cheaper product of the complainant company. But I do not believe that any material portion of the public can now think the word “Cola” necessarily means “Coca-Cola,” or a product of that company. The evidence given can hardly rebut the defendant’s evidence as to the descriptive and generic nature of that word. Dixi-Cola Laboratories, Inc., v. Coca-Cola Co., supra. Nor are the complainant’s word association tests of any greater value in this case. Naturally, the word “cola,” merely printed on a card, would cause many persons to think first of Coca-Cola. It is the most popular and extensively advertised cola drink on the market; but in determining whether there is trade-name infringement, many other existing factors must be considered. The questions were put to a group of college students, who were not subject to cross-examination; furthermore their familiarity, or lack of familiarity, with other cola drinks was neither asserted nor denied.
When read as a whole, neither of the names “Royal
Proof of an actual fraudulent intent to deceive, in order to profit by the prior established trade-name of a competitor, is not essential to trade-name infringement (Enoch Morgan’s Sons Co. v. Ward, [7 Cir.] 152 F. 690, 12 L. R. A, (N. S.) 729; Restatement of the Law of Torts, § 729) ; but, when satisfactorily proved, it may be important in some cases in determining whether the defendant is guilty of the wrongful act charged. Enoch Morgan’s Sons Co. v. Ward, supra; Restatement of the Law of Torts, supra. The commission of other and accompanying acts of unfair business competition may also be pertinent and important evidence. Evidence of actual confusion, because of the alleged similarity of the names used, may likewise be of some importance in determining whether there is trade-mark infringement. 63 C. J. 396; American Tin Plate Co. v. Licking Roller Mill Co., (C. C.) 158 F. 690; Kami v. Diamond Steel Co., (8 Cir.) 89 F. 706. But the application of these rules to characterize and explain the use of a particular trade-name, necessarily depends on the facts.
The complainant company claims that, in view of the evidence, these principles should control the decision of this case; that it shows that the defendant’s use of the word “Cola” in its trade-names is clearly deceptive and unlawful and should be enjoined. I am unable to agree with that contention. The Coca-Cola Company necessarily concedes, that ordinarily “the product including the coloring matter is free to all who can make it if no extrinsic deceiving ele
Particularly, when sold by the glass, the complainant company contends, however, that the similarity in the color of the defendant’s drinks to Coca-Cola is an ever-present assurance that they can be fraudulently passed off for that beverage. Other alleged acts of unfair business competition are also said to corroborate the complainant’s primary claim. But the proven fact that Royal Crown Cola has been fraudulently passed off for Coca-Cola in numerous cases is, apparently, the real foundation on which this argument is based.
The evidence does show that when Coca-Cola was ordered in taverns in various Western cities, and was to be served by the glass, that Royal Crown Cola was repeatedly substituted therefor; in some cases this was suggested to the bartenders by agents of the Nehi Corporation, engaged in promoting the sale of that product. These suggestions were based on the asserted fact that a bottle of Royal Crown Cola contained twice as much as a bottle of Coca-Cola, and could, therefore, be profitably passed off on customers ordering the latter drink. But it clearly appears that such acts were committed by over-zealous agents of the defendant company, and without the knowledge or consent of any officer or other person of authority. See Coca-Cola Co. v. Happiness Candy Stores, Inc., 19 Del. Ch. 292, 167 A. 900; s. c. on appeal, 20 Del. Ch. 456, 180 A. 927. Furthermore, the tavern trade constituted but a small part of the defendant’s extensive business. Perhaps, some slight confusion is always possible when words of a generic or descriptive nature are used in trade-names. Bliss, Fabyan & Co. v. Ailween Mills, Inc., (4 Cir.) 25 F. 2d 370. The fraudulent passing off of one product for another is reprehensible, and, independent of any
Long ago, the complainant company admitted that the public recognized that there was a type or class of beverages known as “cola drinks”; that Coca-Cola was the prototype of that class, and contained but a small amount of the cola nut extract, though it had its properties. The testimony of other witnesses that a beverage could be classed as a “cola drink”,. if it had the usual characteristic taste and color, though it contained little or no extract of the cola nut, is, therefore, both understandable and pertinent.
The alleged fraudulent failure of the defendant company to give the name of the manufacturer or distributor of Royal Crown Cola in broadcasts and other advertisements is not clearly proved, and is of no material importance. The same is likewise true of the alleged fraudulent intent to profit by copying the advertising color schemes which had previously been adopted by the Coca-Cola Company on road
There are cases in which the use of a trade-name has been held to be deceptive in transactions with the public, and has been enjoined, though the'complainant was entitled to no such relief in transactions between the defendant and the trade. Bayer Co. v. United Drug Co., supra; Ford v. Foster, supra. But the evidence in this case does not even justify the application of that rule.
The bill of complainant will, therefore, be dismissed, and a decree entered accordingly.
. No opinion for publication.
No opinion for publication.