*2 SWAN, Before CLARK and FRIEND- Judges. LY, Circuit Judge. SWAN, Circuit Ritchie, On June 1957 Harold F. Jersey corporation a New and own registered “Bryl er of the creem,” brought trademark against suit Chese brough-Pond’s, Inc., corpo a New York ration, charging infringement trademark competition by appellee’s and unfair use of the trademark “Valcream.” The com sought injunctive plaint pursuant relief accounting to 15 U.S.C.A. and an § profits, damages pur treble and costs suant to 15 U.S.C.A. Federal presented question of law and fact is Lanham ed on the jurisdiction was based appellate fore pen- as to which review is Act, 15 U.S.C.A. §§ argument appellant’s closed.” unfair Where jurisdiction the claim dent predicated upon 1338(b), and competition, 28 U.S.C.A. § *3 themselves, has trademarks this court citizenship, U.S.C.A. also on diverse “ * * * good held trademarks, that we are in as and The 1332. designate position judge a determine as the trial to employed Valcream, to were probability of Miles hairdressing confusion.” men which cream Shoes, Macy Co., Inc., 2 Inc. v. R. H. collapsible tubes metal in marketed The Eastern Wine packaged paperboard cartons.1 in Winslow-Warren, Ltd., Judge Ryan F. Cir. 137 Chief case tried before was 955, 960, 2d certiorari opinion denied 320 U.S. jury. his Pursuant without a 64 S.Ct. 14, 1959, 452. September reported in 176 L.Ed. judgment F.Supp. 429, dis- was entered dispute appel There is no that missing appellant’s court action. The registered trademark; lant had a valid “Val- found between no such only appellee’s issue whether con “Brylcreem” like- and as to cause cream” infringed duct the trademark or consti purchasers, and lihood of confusion to competition. tuted unfair al Each case appellant sustain- had not concluded leging infringement trademark must be proving trade- ed burden either judged facts, on its own and citation of infringement competi- unfair mark very helpful, except authorities is not duly Timely appeal tion. notice of was general insofar pattern. show the filed. LaTouraine Coffee Inc. Lorraine appeal The asserts that trial court Inc., Cir., Coffee 115, 117, recognition failing give (1) erred in denied 329 U.S. legal principles applicable to the to a 663; Q-Tips, Inc. v. John competition, in second comer the field of Johnson, Cir., son & failing (2) in to find as a fact that the Beginning appellant, in 1942 and intentionally appellee plaintiff’s imitated title, predecessors in have its sold trademark, (3) in the treatment accorded “Brylcreem” product in the United States confusion, (4) the evidence actual years Canada, appel and in recent dismissing compe- in the claim of unfair acknowledged been an lant has leader tition. style in the sale men’s cream hair dressing way packaged By of introduction its in tubes contained in paperboard Appellant spent argument appellant this cartons. contends has large very good position advertising; sums in as the trial is in as a share court its judge of the United determine likelihood confu States market has increas in from 1953 to contention was advanc ed in 1958. This same sion. 2.6% 11.9% began appellee selling In 1914 decision in J. R. Wood in our recent bottles ed Tonic,” Jewelry Corp., liquid, Hair “Vaseline a clear v. Reese & Sons later, much There a “Vaseline Cream Tonic,” milky infringement reversed, liquid. a Hair white was this court In infringe appellee saying: decided “The decision manufacture necessity, primar United must, on the States be based sell market a ment men’s style hairdressing ily comparison upon a In tubes. marks. This increasing popu due to the decision was of other determinative evi the absence type larity product question of this dence, of law or at best mix- Appellant opposed regis- Appellant’s registered cream.” trademark was 398,474. and, correspondence Ap tration after be- November as No. brought present parties, Reg pellant tween the also owns a New York State suit, consequence “Brylcreem.” of which the Patent istration of the trademark proceeding Appellee applied has not been Office decided. Patent Office registration “Val- trademark descriptive study product thorough this dress name and made after a selling right “Brylcreem.” and fanciful in its own new market created confusing merit, it on appellee market its own When entered nationally public mistakenly August purchasing his into test sales product obviously competitor’s. April 1957, a second for his second it was reputation of its appellant.2 comer must create a comer to goodwill own and not trade on the others, nu In circuit and product already at another established recognized that the merous decisions have considerable risk. cost and duty name and second comer has a to so regard today In much law his avoid likelihood dress as to all fifty years ago, the same as it when confusing prod of consumers *4 Mfg. this court said in Florence Co. principle uct of the first comer. This Co., Cir., 73, J. C. Dowd & 178 F. 75: by Co. is well illustrated & G. D. Searle Cir., Inc., Co., v. Chas. Pfizer & easy “It is so for the busi- honest certiorari denied 361 U.S. man, ness who wishes to sell his which held L.Ed.2d goods upon merits, their to select the trademark in “Dramamine” was universe, from the entire material fringed designating by “Bonamine,” each him, symbols, which is before marks remedy page for motion sickness. At coverings by possibili- 387, quoting verbatim from an earlier ty can cause confusion his between Circuit, of the decision Seventh the court goods competitors, and those of his said: suspicion that the courts look with upon goods who, dressing one in his entering a field of “One endeavor market, approaches for the so near already by occupied should, another public to his successful rival that the the selection of a trade name distinguish may fail between trademark, enough keep away far them.” possible avoid all confusion.” permissible Important is determining It in the Amer economy competitive ican for the second whether second comer’s in entrance capture possible endeavor confusion, comer to as much of to the market creates any comer’s market the first' as he can. He is evidence conscious imitation by giving this, however, product.4 his must do the first comer’s It has often Appellee extraordinary advances the con- for of a use colorable imitation of 2. tention, unsupported by any registered likely citation of mark if such use “is authority, appellant, that because in Jan- to cause confusion mistake or to de uary 1959, changed purchasers somewhat the color ceive as to the source of * * appearance arrangement origin goods of such See J. “Brylcreem” Sons, Jewelry tubes cartons it was R. Inc. v. Wood Reese Cir., using Corp., 157; when the suit was commenced in 278 F.2d Flor thereby 1957, appellant “became ence Co. v. J. C. June Dowd & or second comer” and “abandon- late 178 F. American Chicle competition Topps Chewing Gum, for unfair its claim based ed similarity parties’ alleged 560, 563; Q-Tips, of the car- Inc. v. John Johnson, tubes when this action start- son & 147; tons Appellant’s answer to this conten- Northam ed.” Warren v. Univer obviously namely, correct, that is sal Cosmetic tion appellant’s only effect, any, which 775. appearance voluntary change in the Brylcreem acquired gen- had such a have, packaging can relates its public eye meaning in the eric as to ne- change, damages after such recoverable imitation of its cessitate name question bearing on the has no in the field. This newcomer is evidenced infringement or unfair com- trademark products success of other change. prior petition to such Top field, e.g., Wildroot, Brass, Crew Cut’ imposes liability 1114(1) and Command. 3. 15 U.S.C.A. significance so- ele- than the Even of more recognized that “One been deciding “objective” is wheth- called of intent evidence ments to considered “subjective” which the confusing evidence of er there Having proof documentary. largely des- adopts the who intent of the actor style hair that the decided to market a cream ignation.”5 Appellant contends dressing tubes, asked defendant conscious in not trial court erred suggest advertising agency names de- plaintiff’s trademark imitation of hairdressing “of “Val- mark its fendant’s selection of Type,” emphasizing ap- for name need that support contention of its In cream.” “top priority.” Exh. argues (1) cumulative pellant agency responded list of 25 names objective with a evi- differentiation absence of “Bryl Type.” From (2) Cream Exh. imitation, and dence of conscious appellee picked Valcreem, concerning one appellee’s list evidence two names most copying on the list which non- choice name its closely approximated appellant’s tradem appellant’s aspects of functional (66, 67, 68, ark7 Other exhibits subjective imitate. intent show actual 70) January up single show re- sentence in a The trial court *5 alleg- defendant saying, intended to use suffix jected the “the this contention Why “creem.” or when the determina imitation ed evidence of conscious change advertising jargon tion nothing was made to “creem” to than more only “cream” can be practices surmised. A mem are com- the use of which and general, in appel orandum mon, November 1955 from in business world in the lee’s highly file reveals competitive in that the successful mar and in field “pioneering” “Brylcreem” by ket a particular.” do evi- was We not think that compelling appellee’s reason for choice absence dence which shows cumulative of the name disposed “Valcreem.” Exh. The 94. should of differentiation be original Bryl summarily. similarities between the so creem tube and the Valcream are tube points Appellant out that the accounted for the fact that when products design are identical in the size artist was two summoned to the Val- cartons, tube, shape Bryl of the tubes and and there was a tube of identical,6 similar, prices the colors creem on the desk in front of him. Joint size, Appendix devising and the advertis 125. identical When orifice it came to ing packages tubes and substan the instructions for use and the state ingredients tially same. Moreover contents ment of on the de outside of indistinguishable. They carton, advertising agency are fendant’s of the tubes same; “Brylcreem” look, and smell the was a carton their sent feel an concededly virtually ingredients composing panel iden aid in a “like on Val- appel items to each these cream.” Exh. 87. tical. As Even the color of the monopoly, cap red, conforming had no it made admits it lant was with contends, agree, Brylcreem, question and we the multi when the arose objective plicity the similarities is evi whether to make it red or Exh. white. marketing Valcream, of defendant’s conscious imitation Before appellee dence 78. product. plaintiff’s product series of “blind ran tests” Q-Tips, Brylcreem only competitor v. from Inc. Johnson & was the Quoted mar- 6. Johnson, (“Q- respective- 206 F.2d at at retail keted infringed by Tips”). Tips” picked ly, pric- “Cotton wben defendant held exact Brylcreem v. selling, D. Searle & Co. Chas. G. es for which was See also respectively. Pfizer & denied 361 U.S. along other name on the list 7. which (“Dramamine” L.Ed.2d 65 S.Ct. closely approximat- Valcreem most with by “Bonamine”); infringed Western held appellant’s ed trademark was Palcreem. Refining Jones, Oil infringed (“Silver Flash” held by “Super-Flash”). * * * My-T-Fine aspects. tional In learned that it was “34% Judge Brylcreem Samuels, 2 saw difference between no * * sample Learned said: Hand While Valcream *. “ * * * prefer definitive to be was too small ; de- who latecomer most, appear, close, at would ences it liberately copies his the dress superiority would field, competitors already must point probably than more be 1% prove at has least that his effort any.” Valcream, see Exh. if over court been Prima futile. facie tests, making such In exhs. opinion will treat his disclosed fif hunderd consumed five defendant expert it and will not assume that Brylcreem. ty Exh. ounce tubes of [citing He erroneous cases]. 1% may showing indeed succeed was; that, pur- his however bad opinion evi the above In our execution; pose, fail it will he intentional imitation dence of does, he win. Diamond will Kann v. given adequate court consideration 8). (C.C.A. Steel 89 F. sum court’s below. Doubtless the trial presump- But such intent raises a mary rejection of was due this evidence tion that customers will deceiv- confusing court’s of no ed.”9 trademarks between the two standing the District alone.8 We think Admittedly nothing there is the names should have considered prevent Court making a second from comer conjunction products two selling the identical *6 similarity presentation of the of the the comer, providing first the second comer design respect products with to their and names and dresses its to as general containers, tubes, appearance, likely Clearly avoid all confusion.10 price, size, perfume, and non-func other test has not been met. is This not true significance 8. Much was attached the plosives’ known as ‘voiced and are acous- * * to the tically District Court fact the sec only similar *. The dis- syllable descriptive generic. was or ond similar in the sound two trademarks is assuming arguendo premise Even the as Slight the ‘r’ in Dramamine. differences dissimilarity prefixes to the of the stand of sound similar trademarks will themselves, ing by prefixes protect dissimilar infringer.” not the generic descriptive with combined suf 9. For other Second Circuit to Miller, cases infringe. often been found to fixes have effect, same see Best & v. Co. Q-Tips, Johnson, v. Johnson Inc. & 3 374, 377, 167 F.2d denied 335 (“Cotton” 144 206 F.2d held to (dic U.S. 93 373 L.Ed. infringe “Q” when both combined with tum) ; Shoes, Macy Miles Inc. v. H. R. Refining “tips”); Western Oil Co. v. Co., Inc., 602, 603; & 199 F.2d Ameri (“Silver” Jones, 27 205 6 F.2d held Topps Chewing Gum, can Chicle v. “Super” infringe when both combined to 560, 562; Mastercrafters “Flash”); Florence Co. v. J. with C. & R. Co. Vacheron & Const.-Le C. Co., Cir., (“Sta” F. & 2 73 C. Dowd W., 464, 467, certiorari denied infringe “Keep” when both held com to U.S. S.Ct. 100 L.Ed. 743. “Clean”). in with See discussion bined . Upjohn Schwartz, Cir., D. Co Chas. Pfizer & See G. Searle Co. v. 385, 388-389, Co., Inc., 7 F.2d where this court said: put up drug 361 U.S. certiorari denied 64, S.Ct. “The defendant could his language preparations, using L.Ed.2d 65. The in G. D. the same formula page identically almost and at is even Searle the same size color and for present capsules applicable tablets, case: “Drama his quate precautions if he took ade- prevent Bonamine contain the mine and same the sub- syllables; they products have plaintiff’s, the same stitution his number primary pattern, likely happen with accent on stress result due to secondary syllable similarity products, accent first on close the two syllables third; any the last two of Dram if he did not resort deceitful practices.” amine Bonamine are identical. The also See footnote and re- of Dramamine and Bona lated initial sounds text. (‘d’ ‘b’) are both what are mine at dence of actual confusion introduced imitation only conscious of the because overwhelming. hardly Most as a the trial was above, also because referred but testimony, deposition as and oral name result of the observed, we have showed not confusion dress, did occur. actual confusion but carelessness and inattention on Hodges broadcast television The Gil part purchaser.” opinion of the In our of con- provided source of evidence one judge statement the trial briefly in summarized fusion testimony of fact on based Appellee opinion.11 Court the District merely a characterization of the testi- in certain offer television made an mony embodying judge’s view as purchasers of refund west coast cities to signifi- denying what “confusion” In is. check of Valcream size cance to the evidence of actual confusion signed by baseball sum we think the court erred. Confusion Hodges. player in- This evidence Gil part careless inattentive Bryl- in which cluded thirteen instances purchaser may disregarded. not be As appellant creem cartons were mailed to this court said American Chicle Co. v. appellee’s response television com- Topps Chewing Gum, Inc., Appellee mercial.12 also received at least 563: ten, probably more car- response tons to its offer. There “ ** * the first comer’s care- receipt evidence of cartons less customers are him valuable to hairdressing. competing An- other any others; and their carelessness source evidence other was the testi- hardly charged Why can to him. manager mony department legiti- should be deemed more charge Drug of cosmetics in Katz game poacher mate for a than his Moines, Iowa, dep- Store in Des and the buyers, careful see, it is hard to un- Drug employees ositions two Katz ground less it be on the that he City, Two Store Kansas Missouri.13 should have made his mark so con- additional instances of confusion were spicuous that it would serve to hold proved. Drug also The Oklahoma Sales *7 Surely even the most heedless. Company Lawton, Oklahoma, of mistak- inadequate is an defense. We enly appellant invoiced ad- Valcream not committed to [that] doctrine vertising paper; in a local and Dakota this circuit.” Drug, Minot, Dakota, of North relating appellant price sent a letter to a deception pur- or Actual confusion by appellee offer reduction made for Val- is not essential chasers 14 Even Standard & Poor’s some- infringement or unfair com- trademark transposed how the two names and at- being recognized petition,16 it that “re- tributed the to the of actual liable evidence instances appellee corporation.15 practically impossi- is almost confusion proof But where ble to secure.”17 such The court brushed aside this weight given adduced, should has been be evidence with the statement: “The evi- F.Supp. 429, page 15. Exh. The author of the article 34. 11. 176 at 431. merely a testified that this was careless accompanying 12. Letters these cartons are transposing the names. mistake forth set in Exh. 43. & 16. Mastercrafters C. R. Co. v. Vache Appellee 13. Exh. 36. contended this W., C. ron & Const.-Le F. hearsay. evidence was inadmissible Such 464, 466, certiorari denied 350 2d U.S. testimony, however, falls into the cate- 67, 743; 832, 100 L.Ed. 76 S.Ct. G. D. exceptions gory hearsay to the rule v. Pfizer & & Co. Chas. Searle exempts which statements as to mental F.2d 317. Wigmore condition. 1714. Shoes, Macy Co., Inc. v. R. H. Miles & 14. Exhs. 32 and 33. Inc., 2 353; impressive Jantzen, Inc., Cir., is it.18 Here the evidence spontaneous and see Sterling Pharmacal Co. view of character also Norwich its Drug, Inc., Cir., difficulty of attainment. denied 362 U.S. un Moreover, is difficult it classic earli L.Ed.2d and the found court on derstand what basis er cases of v. Win Eastern Wine were confused customers who were slow-Warren, Ltd., Cir., 137 F.2d such careless None of or inattentive. 758, 64 S.Ct. certiorari denied 320 U.S. at produced a witness customers Sons, B. Kent and G. compari side the trial. side While a D.C.S.D.N.Y., Ltd. v. P. Lorillard trademarks, and cartons son of the tubes Cir, F.Supp. 621, affirmed 2 observer would enable an attentive body My brothers this avoid them, test to is not the differentiate this opinion by device recent the convenient general applied.19 overall It is ignoring many so close it. But so body counts; impression find we sug necessarily precedents are gest elsewhere, opinion or in this circuit was, Judge Ryan that Chief contrary. strong grounds denying relief below Bryl- infringement of the Since we find very fully analyzed opinion, D.C.S.D. his N.Y., unnecessary trademark, creem it F.Supp. that reversal allegation competi- of unfair consider differing composi comes because tion, governed essentially which is sitting panel. tion of the principles already the same discussed. recognize exigencies foregoing I Now deci- For reasons we believe dismissing its sion to find actionable the trial court erred in Accordingly, judgment absence in trade name cases where the action. is re- usually test, all, final after be the must versed proceedings remanded for further and the case subjective looks trier’s reaction to the not inconsistent competing inspection. opinion. names on precedents, but natural that the So It so ordered. may inconsistent; per- seem diverse or judicial uncertainty haps here is Judge CLARK, (dissenting). Circuit wholly without its value as a stimulus carefully goad Way” In a recent series of formu- to the “American of free opinions myself, certainly competition. lated and reasoned court And I degree special has declined to extend the trade-mark do not claim sistency, of con- monopoly prohibit competitive impossible use which is so attain- *8 ordinary English suggest well-known But I do ment here. that there ground J. R. Wood & v. Reese words. Sons are certain desirable rules which 157; Jewelry Corp., Cir., ought 2 278 F.2d limit somewhat the area of Crystal, Inc., applicable. Perhaps Shoe Co. v. David 2 Avon Cir., doubt where the 607; Speedry Products, important presently 279 F.2d most in issue the Cir., against discovering Products, Inc., Dri Mark Inc. v. admonition action- 646; only through 271 F.2d Dawn Donut Co. v. Hart’s the able use a Stores, Cir., 358; already public Food 267 F.2d word in the Here domain. Lee, Nifty obviously wholly quite prefix Kitchens Sara Inc. v. Foods the “Val” is Cir., 541; Corp., 2 266 F.2d Warner Bros. unlike the combination harsh conso- inexpensive products involved, K. Fairbank Co. v. R. 18. N. W. Bell whcre 869, 877; Esso, buyer Cir., 77 F. normal Inc. since the does not exercise Co., Cir., 1, buying inexpen v. Standard 98 F.2d an as much caution in Oil sive article as he would for a more ex Co. Coca-Cola v. Chero-Cola pensive making one, confusion more like 755; App.D.C. 27, 273 F. G. D. Searle ly. J. Mueller L. Furnace Co. v. United Co., Inc., Pfizer & & Co. Chas. Conditioning Corp., 755, 222 F.2d 42 CC 385, 265 F.2d certiorari denied 361 U.S. PA 932. 819, especially 80 S.Ct. 64. This is true 758, 64 S.Ct. add certiorari 65, 320 U.S. “Bryl”; only denied we nants when (or more 452.1 simple even word “cream” corrupted form strangely, plaintiff’s present case As a matter of fact in- “creem”) semblance is there a apt illustration of affords an even more plus, fringement. amake This is to principle. “art” is one For word infringement unique two plus, from ambiguity, generality, even convenient separately noninfringement; zeros of rings, applied high-grade whereas justify parts cannot of the words two ordinary “cream” is and more both more monopoly For bases the action. precisely descriptive of the here. highly upon word useful common and unoriginal simple So the mixture limited properly be whose use not beeswax, here of white oil and with a exploitation. to such exclusive perfume, produce product “citrus” does by conveniently not some aptly described principle illustrated be substitute, essentially dictionary other such as all fours our recent case here, “cosmetic” or “emulsion.” And thus & Sons v. J. R. Wood with the one Jewelry supra, even af- Corp., without the added distinction Reese holding plaintiff’s spelling forded F.2d 159. There wedding “creem,” I should it that no think clear “Artcarved” trade-mark infringed engagement rings actionable confusion could be attributed and by ¤ Crest,” name, to defendant’s and that affirmance mark “Art the defendant’s required. I advert to While shall Judge pointed marks both out that Moore considerations, all does other else seem syllable in common used first a word as a gilding lily. to me but use, e., “Trade- He continued: “art.” i. public containing further a word in But it would seem marks ‘confusingly competitive court must market domain are said to less view only realistically other here involved resemble each similar light plethora is in of hair creams of a word which the inclusion domain;’ everywhere [Citing Goldring, other cosmetics distributed public ubiquitous collapsible Town-Moore, Inc., tube. Here 228 F.2d Inc. v. inexpensive we have nonsecret hair- and other cases.] 43 CCPA * * * grant protec- dressing, upon spent appellee the built millions To advertising,2 having sought all upon it a after to com- vir- would bestow tion commencing pete monopoly similar with countless other word tual ” products; Citing protec- Bros. Co. v. while it is entitled Warner with ‘art.’ Jantzen, name, tion its own supra, 2 cannot claim among uniqueness creams as such or hold Wine Winslow-War- and Eastern supra, Cir., Ltd., this defendant to standards unrealistic ren, F.2d By-Products principle, applying v. Tobacco Smith other cases For Bottling Corp., 243 F.2d v. Carlisle Chemical CC Coca-Cola see Works, n 880; D.C.E.D.Ky., Lauritzen & Co. v. Borde PA Co., 43 882, CCPA affirmed 6 *9 Chahin, Co. v. U.S. S.Ct. L. Crown Overall denied 778; Glenmore Distilleries Co. v. F.2d 935. Ed. Corp., Products Distillers National says brief “an- Plaintiff in its its denied certiorari pat- have shown a nual sales since 1953 59 S.Ct. U.S. relationship of direct and consistent tern Central Petrole Pennzoil Co. v. Crown advertising expense. D.C.Md., F.Supp. Corp., of to the amount um period plain- Thus, during 1953-1958, the affirmed from of total hair- tiff moved the 322 U.S. denied 2.6% * * * dressing in the U. market S. stress These cases also the L.Ed. 1581. advertising expense importance, its dominating to And to show dissim 11.9%.” year up $696,800 ilarity, syllable from fiscal the went the first or word in a of $2,219,800 composite for 1957. al 1953 to or term. See combination Restatement, monopoly details; claim no Torts in these trade the trade. See g (1938). and defendant is any of 729(c) (d) and comment entitled to make use and necessity, making of Plaintiff, of them will a virtue which aid it the com- petitive “in- greater protection because has race. Remember defendant claims likely general to products been longer expensive more cosmetic business are ones,” nothing con- expensive plaintiff, but than the and than confused registrations of “cream” attempt could be more natural than to cedes other its question up advertising plaintiff’s catch Hence with the to be valid. marks again supposed simi- success. Much to the of what is now comes back larity cited against my “Bryl” applied to a as it to mind on of “Val” to the con- shows why readily trary apparent very cream; considerable it is not concern make but competition legal its combinations. proper. other Of that is closer than reg- twenty compete; course it showed some intended to Thus defendant it would wholly disingenuous various been Officeof have Patent dis- istrations containing descrip- composite honest have claimed marks it was oblivious presently largest misspelling of there- “cream” or tive word distributor rejected the original differentiation business. is hard to see a So when it its It of. present supporting com- such word spell “Valcreem” not here “Glo-Cream,” “Milcream,” properly, “cream” posites I should think ac- its “Eeccream,” “Lashcreme,” commendable, “Lavocream,” tion rather than re- say composites of To picked verse. and “Pearl Cream.” Such that defendant popular long presently possible from a cream, list such as laid names “kreme,” now- before it or most usual are one the two “creme” names which dressings, closely adays approximated shampoos, plaintiff’s most in hair cleansing creams, speak of accept blindly trade-mark plain- not to is shaving self-serving closely asseveration, tiff’s allied dental creams and the truth creams;3 apparent inspection medicine closet which is it rare not nowadays not various 250 or will have more names set forth. soAnd suggest I “cream.” with defer- as to the much tubes belabored “late-comer” my argument, brothers are now start- it ence that ing course is valid where special protect- valid, namely, road to copy- on the afford where there real name, they long ing, to this find it a not where tion will the names are as dissimi- hazardous, impossible, pause if not lar I an one. as here. shall to examine according all-pervasive detail, For each tidbit of but I trust set have plaintiff’s enough uniqueness to explain my name of the forth own convic- perhaps respect realistic “objective” kind precision ly with to a tion that both the so-called ring, “subjective” watch a fine hard- evidence intent respect nothing illegal mere cosmetic itself improper shows competitive battle; cream. on the con- trary, it scrupulous tends to indicate a my brothers’ meticulous So and labored attempt to learn and prop- to observe the rehearsing every advertising detail, legal er limits. including shape orifice tube, container, form of the the com- brings again And that me back petitive prices point to crucial of likelihood of confusion —590 390—seems deserving aof better be frankly cause. For competing product. to the source of the cannot bearing I see what of value it point, plaintiff As on the tried Admittedly plaintiff proves. extensively has and can to show evidence actual *10 Reports example, For Consumer registrations. 1957 nor do the trade-mark The Buying publication Guide lists some 13 “creams” or cleansing same lists some 32 shampoos. among hair quite “cremes” Plain- “creams” and becomes indefinite urges by tiff a difference in intended use shaving as the number of and dental women; suggests men or but the record creams. way testing gender, hair oil for

765 making confusion, had the mis- course defendant also was sub- consumer but has distinguished in- trial stantial sales. few isolated fortune have the against stances, findings court, judge by it. summarized the trial of fact make D.C.S.D.N.Y., 429, 431, This, too, presented F.Supp. obstacle a serious reaching mainly Brylcreem purchasers my the conclusion where tried brothers in impelled. money-back they felt cash in on a otherwise offer Val- ways surely perhaps television, in which cream on im- There were two are not pressive against background they might obstacle. One have met this such a sales; ignore interesting it, indeed, treated was to since we have it is to note that, anything, Brylcreem confusion one the conclusion as to slight gainer appeal. See law reviewable us from Valcream’s television Jewelry advertising, Reese J. R. Wood & Sons and there seems an actual showing Corp., supra, may persons F.2d cit- dearth of a who ing bought cases.4 But in view of the obvious have the latter for the former. judge impliedly quite properly So difficulties which are conceded said: “Most very argument, deposition testimony, detail of their and oral they prepared quite observed, were not so we have to take showed not confusion step. they pursue drastic a Instead but carelessness and inattention on the opposite attempting part purchaser.” D.C.S.D.N.Y., course of to deni- grate findings being F.Supp. 429, 432, either not in 433.5 To me these vastly accord with the evidence not true weak trivialities overex- findings submit, however, ploited anything I impressive both. field are easily may —quite they not contrary these determinations thus in fact —and judge experienced pushed correctly appraised by per- trial have been ceptive judge. They aside. trial far from demonstrating any real likelihood of con- For when we come to examine Chief statutory prohibition, fusion within the Judge Ryan’s findings detail, actual 1114(1). 15 U.S.C. § amply supported by we find them bring In short all roads us back to the particularly exemplary record and be- necessity seeing confusing some simi- tinge cause of the of common sense larity “Bryl” between and “Val.” Since Actually puny reflect. few instances it, I cannot see I find no basis for in- possible among or claimed confusion junctive plaintiff relief or for scanty millions of were sales as to damages accounting “profits.” and an impel contrary conclusion. On the Surely accounting present such an will gross plaintiff’s basis of sales defendant questions apportionment fair unusual reasonably plaintiff estimates that sold of award! approximately 32,000,000 tubes of its during three-year period, I would affirm. agree. See, e.g., thoughtless all Not circuits Cleo cases of confusion or errors Syrup Corp. by very Co., purchasers v. Coca-Cola inattentive are of 416, 417, 418, very significance 150 A.L.R. little in trademark and competition certiorari denied 321 U.S. unfair cases. S.Ct. Pennzoil Co. 88 L.Ed. 1074. v. Crown Central Petroleum Md., D.C. F.Supp. 891, affirmed 4 Judge 5. See the words of Chief McAllis- accord, Kellogg F.2d 387.” In see Co. v. Son, ter in S. C. Johnson & son, Inc. v. John- National Biscuit 305 U.S. 141: “The 73; Valvoline Oil owner of a trademark entitled to Co., D.C.S.D.N.Y., Co. Havoline Oil guarantee against confusion Quaker 211 F. Oats Co. v. buyers, minds of careless and indifferent Mills, Cir., 429, 432; General Mishawaka Rubber & Woolen Restatement, Torts § comment a Co., D.C.Mass., v. Panther-Panco Rubber (1938). F.Supp. 308; merely occasional