209 Mass. 251 | Mass. | 1911
These bills are brought by the plaintiff in George G. Fox Co. v. Glynn, 191 Mass. 344, and in George G. Fox Co. v. Hathaway, 199 Mass. 99. The master in the case at bar has found (1) that the defendants began to sell the loaves here complained of “ soon after the decree of the Superior Court of this County [referred to in these bills] dismissing the bill in the case of the George F. [sic] Fox Company v. Hathaway, was entered,” and (2) that “ The defendants’ loaves here in question are, except for slight differences in the labels, substantially the same in appearance as those in question in Fox [szc] v. Sathaway”; but in the words of his report, (3) “ Upon all the facts,
The defendants contend that for two reasons this does not bring these two cases within the decision in George G. Fox Co. v. Hathaway, ubi supra. The first of these reasons is that it appeared in the Hathaway case “ that the oval shape adopted by the plaintiff was uncommon, although not entirely novel, and that it was uneconomical, and less convenient and satisfactory generally for the cutting of slices for all kinds of uses than the shapes generally adopted. There was nothing to show that the defendants’ business interests required the combination of this shape with the same size, color and general visual appearance that had become associated with the plaintiff’s trade in this ‘ Creamalt ’ bread,” while in the cases now before us it has been found as a fact that the oval-shaped loaf with its flaring sides and exaggerated rounding of the top is on the whole an advantageous loaf and for the following reasons: (1) It has an appearance of bulk and size which no other loaf of the same weight has and therefore purchasers who wish to get as much as possible for their money prefer it: (2) It has a handsome and attractive appearance: (3) Its rounded corners are less likely to be broken in transportation and the pans are more easily cleaned: (4) Although it is a fact that it is less adapted to being cut into uniform slices, that fact is of little importance in the “ family trade,” for which the plaintiff’s and the defendants’ loaves are primarily intended.
The second ground on which the defendants seek to take the eases at bar out of the decision in the Hathaway case lies in the fact that the master has found that "If the fact is material . . . the defendants, perceiving that a loaf like the 'Creamalt ’ loaf, with rounded and flaring sides, suited the public taste or whim, and desiring to meet the competition of the 'Creamalt ’ loaf, decided to make a loaf having such rounded and flaring sides.” The plaintiff has no exclusive right to make and sell bread having an oval shape, flaring sides and an exaggerated rounding of the top. And the defendants would have a right to make and sell bread which has that shape were it not for the fact that bread of that shape means to the publip that it is made by the plaintiff. From this it follows (as was decided in Flagg Manuf. Co. v. Holway, 178 Mass. 88, and as was stated in that part of the opinion of this court in George G. Fox Co. v. Hathaway quoted above) that the defendants can use that shape of loaf if they take such precautions as will prevent their bread from being taken for the plaintiff’s bread. The only precautions
We are therefore of opinion that there is nothing in these eases which takes them out of the decision in George G. Fox Co. v. Hathaway, 199 Mass. 99, and that the twelfth exception to the master’s report must be sustained.
- A new defense, however, is set up, namely, that the plaintiff does not come with clean hands. The master has found (first) that the representation made by thé plaintiff as to the ingredients of the bread is that it is made of milk and malt unless calling it “ Creamalt ” “ may be taken to connote the use of pure cream.” In our opinion it does not. Secondly, the master found that when the bill was filed “the plaintiff widely advertised ‘ Creamalt ’ bread as the ‘ new bread made with milk and malt.’ ” The findings of the master are that the plaintiff used malt as one of the ingredients of its bread because “ it was also thought by the plaintiff to impart a desirable flavor to the bread,” and that “the ingredients used in making ‘ Creamalt ’ bread were of good quality and were skilfully combined and baked, in accordance with a formula devised by the plaintiff’s agents as the result of experiments.” The bread therefore appears to have been made according to a new formula, and so might be fairly termed a new bread, although all the ingredients had been used in combination before in making bread. Thirdly. Up to and including the year 1906 the plaintiff did make misrepresentations of fact with respect to its “ Creamalt ” bread. It advertised that “It has twice the food value of any other bread.” And there were other similar misrepresentations. But these advertisements had been stopped nearly a year and a half before these bills were filed on June 4, 1908. Although it is not so found in terms, we take it to be the fact on the findings made by the master that the increase in the plaintiff’s daily sales from “ about one hundred loaves ” to “ about six thousand loaves ” may have come in some degree from these false representations. Notwithstanding that, the plaintiff has built up a large and remunerative business in selling a good bread which
The orders overruling the first, third, fourth, fifth and twelfth exceptions to the master’s report taken by the plaintiff must be reversed and said exceptions must be sustained. The orders for decrees dismissing the bills must be reversed and decrees entered in favor of the plaintiff.
So ordered.