186 P. 207 | Cal. Ct. App. | 1919
Lead Opinion
This is an appeal from a judgment in favor of the defendant after an order sustaining its demurrer to the plaintiff's complaint, the latter having declined to amend.
The facts of the case as set forth in said complaint are briefly these: In the year 1907, and long prior thereto, the *593 Del Monte Milling Company was engaged in the manufacture and sale of food products throughout California and adjacent states, in the course of which it had discovered a process for the blending of different kinds of flour so as to produce a compound to be used in the making of pancakes, waffles, etc., and which it had introduced to the trade and largely sold under the name of "California Flapjack Flour." In 1907 the Del Monte Milling Company sold to the plaintiff the exclusive right to use this process in the manufacture of said compound for sale in certain of the southern counties of California and in the states of Nevada and Arizona. The plaintiff thereupon began the manufacture and sale of the product under the name of "California Flapjack Flour," and have since continued so to do, and have expended large sums in advertising said product under said name, and have built up an extensive trade therein. It is also alleged that because of the long-continued use of said name the word "Flapjack" therein has come to be understood by consumers and by the public and the trade generally to mean and apply to the particular brand of self-raising flour which the plaintiff was making and selling under said name, and that in fact up to the year 1914 no other like article of food had been put upon the market or sold within said territory under the name of "Flapjack" or "Flapjack Flour." The complaint then proceeds to allege that in the year 1914 the defendant began the manufacture and sale of self-raising flour, to which at first it gave the name of "Pancake Flour," but a year later this name was changed, and the defendant began to put forth its said product under the names of "Flapjack Flour," "Los Angeles Best Self-rising Flapjack Flour" and "Taylor's Improved Flapjack Flour," and to sell the same within said territory under said names, and that many persons have bought the defendant's said products under the belief that they were obtaining the plaintiff's product, and have thereby been deceived to the plaintiff's injury and loss. The complaint prays for an injunction against the defendant restraining it from the use of the name "Flapjack" in connection with the product which the latter puts forth.
The defendant's demurrer was general and the trial court sustained it upon the broad ground that said complaint did *594 not set forth facts sufficient to constitute a cause of action. The correctness of this ruling is assailed upon this appeal.
We are of the opinion that the trial court was not in error in its said ruling. The appellant concedes that the word "Flapjack" and the phrase "Flapjack Flour" are generic terms, which could not be made the subject of prior or exclusive appropriation as or by means of a trademark, and the plaintiff lays no claim to the possession of any exclusive right thereto or to the use thereof upon that ground. This phase of the case being disposed of by this admission, the only remaining basis upon which the plaintiff could predicate a claim of right to prevent the defendant's use of said terms in marketing its own product would be that by such appropriation and use of said terms the defendant was indulging in a fraudulent practice to the plaintiff's injury which it would be the duty of a court of equity to enjoin.
[1] There can be no question but that upon proper averments and proof of fraudulent intent and conduct on the part of a defendant in so duplicating the plaintiff's product or imitating the name or content of its wares, or the place or places of sale, as to deceive the public into the notion that it was in fact entering the plaintiff's store or buying the plaintiff's goods, a court of equity will enjoin the further pursuit of such fraudulent purpose and practices. The leading case in this state upon that subject is the case ofWeinstock-Lubin Co. v. Marks,
[3] An examination of the plaintiff's complaint herein in the light of these cases will disclose how far short it comes of measuring up as to its facts with the case of Weinstock-LubinCo. v. Marks, supra, and also how far it fails to bring the plaintiff's case within the law as laid down in the two later cases above cited. While it is true that the defendant does make use of the old and familiar word "Flapjack," already in use by the plaintiff in relation to its own product, it does not otherwise make any attempt to deceive the public by a duplication of names. The plaintiff's article of merchandise is put forth under the name of "California Flapjack Flour." The defendant's product is marked under the names "Los Angeles Best Self-rising Flapjack Flour" and "Taylor's Improved Flapjack Flour." Not only is there thus displayed the very opposite of an intent to deceive in the matter of names, but in addition to this the plaintiff makes no pretense at any showing that the defendant, in placing its product upon the market under these distinctive names, has done anything in the way of duplicating the wrappings or imitating the packages containing the plaintiff's wares, or of doing anything whatever in the way of advertising or soliciting which would have a tendency to deceive or mislead the purchasing public into the impression that they were buying the plaintiff's wares. Clearly, in the absence of such essential averments it fails to state a cause of action.
Judgment affirmed.
*596Waste, P. J., and Kerrigan, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on December 11, 1920.
Angellotti, C. J., Lawlor, J., Wilbur, J., Lennon, J., and Olney, J., concurred.
Melvin, J., was absent.
Shaw, J., dissented from the order denying a hearing in the supreme court and on December 13, 1919, rendered the following opinion thereon:
Dissenting Opinion
I dissent from the order denying a rehearing and refusing a transfer of this case to the supreme court.
The case comes directly within the principle established by this court in Weinstock, Lubin Co. v. Marks,
