289 F. 57 | 9th Cir. | 1923
(after stating the facts as above). The record fully justifies the order of the Federal Trade Commission enjoining the use of the petitioner’s corporate name. The petitioner went into the business of manufacturing and selling children’s shoes and took a name so similar to a senior corporation that was engaged in precisely the same business and in the same field that confusion of the two corporations in the public mind was inevitable. The names “Juvenile Shoe Corporation” and “Juvenile Shoe Company, Inc.,’’
Nor are we convinced that this court should modify that portion of the order here under review which forbids the petitioner to use the word “Juvenile” on its marks, labels, and tags in connection with the sale of children’s shoes, and from suggesting by word, mark, label, or otherwise that its goods are the goods of the Juvenile Shoe Corporation. The Federal Trade Commission found as a fact that the use of the word “Juvenile” as it was employed by the petitioner caused confusion and led purchasers to believe that the petitioner’s goods were those of the Juvenile Shoe Corporation. It is not asserted that the Juvenile Shoe Corporation has the exclusive right to the word “Juvenile” as applied to shoes, but we think it has a proprietary and exclusive right to the good will which it has created by its dealing and its advertising with the purchasing public, as well as by the superior quality of its shoes, and that the use of the word “Juvenile” by the petitioner on its shoes, has, as the Trade Commission finds, tended to create the false impression that the goods sold by the petitioner were the goods of the Juvenile Shoe Corporation and while it may be that the word “Juvenile” is not susceptible of appropriation as a trademark, the right to its use as a trade-name may still be protected against the unfair competition which might result, from the use of the same trade-name by another corporation, where both are engaged in the same trade, dealing in the same class of goods and in actual competition with one another, Pillsbury-Washburn Flour-Mills Co. v. Eagle, 86 Fed. 608, 30 C. C. A. 386, 41 L. R. A. 162; Straus v. Notaseme Co., 240 U. S. 179, 36 Sup. Ct. 288, 60 L. Ed. 590; G. W. Cole Co. v. American Cement & Oil Co., 130 Fed. 703, 65 C. C. A. 105; N. K. Fairbank Co. v. Luckel King & Cake Soap Co., 102 Fed. 327, 42 C. C. A. 376; Stark v. Stark Bros. Nurseries & Orchards Co., 257 Fed. 9, 168 C. C. A. 221.
It is contended that, since the petitioner has ceased the use of .a label on the cartons in which its shoes are packed and sold, an order to cease placing such labels on the cartons is not warranted; but it does not follow that the order should be dissolved. The Juvenile Shoe Corporation is not bound to accept the fact of the disuse of the labels as proof that the use will not be resumed in the future, and the mere fact that the petitioner has ceased such use is no reason why in
The order of the Federal Trade Commission is affirmed.