Opinion by
Plaintiff, manufacturer of KoolVent Aluminum Awnings, filed a bill in equity to enjoin defendant from using tbe name “Cool-Ray” in tbe sale of aluminum awnings and from persisting in unfair trade practices and for an accounting and damages. The chancellor, after hearing, dismissed the bill. The case turns on two narrow questions: Had the plaintiff’s trade name or trade-mark acquired a special or secondary meaning; and if so, was defendant’s name or practices so similar to plaintiff’s as reasonably likely to confuse or deceive the public?
The chancellor found, upon adequate evidеnce, the following facts: KoolVent Metal Awning Corporation is a Pennsylvania corporation which was chartered October 26, 1944, and has patented the trade-mark “KoolVent” which it registered with the Secretary of the Commonwealth of Pennsylvania on November 12, 1947. It has advertised its рroducts extensively nationally, as well as locally in Allegheny County. Defendant was engaged in the business of selling and installing building materials and equipment, bathroom fixtures, and, since March 1949, has sold aluminum awnings. The name “Cool-Ray” was adopted by the manufacturer and both it and the defendant knew of KoоlVent. awnings prior to the adoption of the name “Cool-Ray”. Defend *531 ant advertises Cool-Ray awnings locally in newspapers, periodicals and brochures. Other metal awnings of similar design and construction are advertised for sale in Allegheny County under various names, such as “Breezе”, “Breezeway”, etc. The prefix “cool” or “kool” is widely used. It appears from Thomas’ Register of American Manufacturers, that the word “Koolhomé” was registered as a trade name in connection with awnings in IDJjO, although never sold in Allegheny County; the word “Coolvent” has been used by manufacturers of attic fans; “Cool Vent” by manufacturers of piston rings; and “Cool-A-Vent” was registered as a trademark for window ventilators in 1939. There are more than fifty other products patented with the name “Cool” or “Kool” as a prefix or part of a name, which are in use in other parts of the country.
The plaintiff laid particular stress on the vent as a unique рart or characteristic of their product; the Cool-Ray awnings have no vent and do not have a similar appearance. The names do not look or sound alike and create no confusion. The first letter is of course different; the form of the letter is different, one bеing block and the other script; the word “KoolVent” has a mark over the top of each word; the word “Cool-Ray” is hyphenated; and they neither appear nor are pronounced nor sound alike. “The word ‘Cool’ is appropriate for and commonly used in the sale оf awnings, regardless of type or substance.” The word “cool” is a generic word of common and widespread usage; “both [names or trade-marks] suggest a quality generally applied to awnings, i.e., coolness. However, this feature is distinguishable by the last part of each name; vent indicating that the coolness is by ventilation and ray indicating that the awning itself cools the sun’s rays without indicating in what particular way this is accomplished.” There is a high degree of care exercised by purchasers of each product, since the articles are *532 expensive and arе bought only after negotiation, measurements, and considerable attention.
In all of defendant’s advertisements the name “Gut-bro Construction Company” is prominently displayed, and the chancellor specifically found that “the defendant did not intend to cause confusion in the minds of the buying public or to defraud plaintiffs”. Furthermore, “there was no evidence that the name ‘Cool-Ray’ was so similar to the name or trade-mark ‘KooTVent’ as to cause confusion in the minds of the purchasing public” *
Plaintiff is attempting to assert its rights, not in the word “Kool” alone, but in the name “KoolYent” in its entirety. There was nо evidence that anyone had been confused by the use of the name Cool-Ray or by defendant’s conduct or practices. To these findings by the chancellor, we may add that unless advertising created of itself and without any further proof, a secondary meaning in the mind of the publiс so as to connect and identify “KoolYent” awnings with the manufacturer, there was no evidence to justify the chancellor’s finding that a secondary meaning had been established by plaintiffs.
The law in this class of cases is well established; its application to different facts and circumstances is sometimes difficult.
Descriptive, geographical and genеric words, as well as words of common or general usage
belong to the public and
are not capable of exclusive appropriation by
anyone. This general principle is subject to the limitation or exception that if a trade name or trade-mark or other word or words have acquired,
in the trade and in the minds of the purchasing public,
a special or so-called secondary meaning, i.e., hаve come to mean that the article is the prod-, uct of a certain manufacturer or of a particular indi-.
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vidual or corporation, such trade name or trade-mark or word or words will be protected against infringement:
Quaker State Oil v. Steinberg,
In determining whether a trade name or trade-mark has been infringed the courts take into consideration these factors: (1) The degree of similarity between the trade names or trade-marks or labels in appearance, pronunciation or sound, and in the verbal translation of the pictures or designs involved; (2) The actual intent of the party allegedly guilty of infringement; (3) The nature of the articles and the use for which they are intended, as well as the manner of production or marketing or advertising thereof; and (4) The degree of care likely to be exercised by purchasers. Cf.
Thomson-Porcelite Co. v. Harad,
While the chancellor found as a fact that there was no intent to deceive, an actual intent to deceive is not indispensable:
American Clay Mfg. Co. v. American Clay Mfg. Co.,
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essary is that the court: shall find from the evidence that the name or mark or label, or the conduct and practices of the defendant
actually
confused and
deceived or that it is reasonably likely that the average purchaser will be deceived;
possibility that purchasers will be misled is not enough:
Stroehmann Brothers Co. v. Manbeck Baking Co.,
The chancellor found as a fact that there was no evidence in this case that anyone had been confused or deceived by the use of the name “Cool-Ray” or by the conduct or practices of the defendant. Mоreover, the court en banc, in an opinion by the chancellor, correctly decided that if Mrs. Heymann, plaintiff’s only witness as to the alleged confusion “is to be accepted as a typical example of the buying public, the Chancellor would not have been justified in his finding that the name KoolVent had developed a secondary meaning, for insofar as Mrs. Heyman was concerned, it had not.” The only basis on which a court could find in this case that the word “KoolYent” had acquired a secondary meaning, i.e., to mean the product of the particular manufacturer as distinguished from aluminum awnings or awnings in general, arises from the extensive national and substantial local advertising of the plaintiff over a period of several years. This is not sufficient:
Quaker State Oil v.
Steinberg,
Quaker State Oil v. Steinberg is on its facts the closest authority to the present case and rules it in favor of the defendant. In thаt case, this Court refused to enjoin, at the complaint of the Quaker State Oil Refining Company, the use of a trade name “Quaker City” by the defendant, Quaker City Oil Refining Company, nothwithstanding the fact that the plaintiff had over 70,000 dealers handling its oil and its annual sales *535 exceeded ten million gallons and that it had been engaged in extensive advertisement of its trade name “Quaker State” for many years. The law is clearly stated by Justice, later Chief Justice, Schaffer in a very able and comprehensive opinion, from which we quote the following “ ‘. . . the word Quaker [State] is a descriptivе term not capable of exclusive appropriation by anyone and ... it may be used by the world at large in . .. [a] non-deceptive way. . . .’
“If, however, the geographical term has taken on a secondary meaning it will be protected. . . . ‘There is nothing abstruse or complicаted about this theory, however difficult its application may sometimes be. It contemplates that a word or phrase originally, and in that sense primarily, incapable of exclusive appropriation with reference to an article on the market, because geоgraphically or otherwise descriptive, might nevertheless have been used so long and so exclusively by one producer with reference to his article, that in that trade and to that branch of the purchasing public, the word or phrase had come to mean that the articlе was his product; in other words, had come to be, to them, his trade-mark. So it was said that the word had come to have a secondary meaning, although this phrase, “secondary meaning,” seems not happily chosen, because, in the limited field, this new meaning is primary rather than secondary; that is to say, it is, in that field, the natural meaning.’ . . .
“The only evidence from which it could be inferred that the name of complainant’s product had acquired a secondary meaning prior to 1919 is that Us product has been marketed and had been nationally advertised for five years under this namе. There is no other evidence from which it could be inferred that the public associated ‘Quaker State’ or ‘Quaker’ with the complainant’s product at that time. ‘The mere adoption and use of words in advertisements, circulars and price
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lists and on signs and stationery give no exclusive right to their use’:
DeLong Hook & Eye Co. v. Hump Hairpin Mfg. Co.,
“But even if it be assumed that the words ‘Quaker State3 acquired a secondary meaning in 1919, it wilt not help the сomplainant’s case. The defendant can only be enjoined from the use of the name ‘Quaker City’ if it is deceptively similar thereto:
Celluloid Mfg. Co. y. Cellonite Mfg. Co.,
“In Caron Corporation v. Conde, 126 Misc. (N.Y.) 676, 677, 213 N. Y. S. 735, affirmed
“If it had been shown that the defendants were endeavoring to palm off their product as plaintiff’s, a different situation would exist and relief would be granted. Nothing of that kind was attempted to be established. All that appeared was that occasionally some purchasеr did not differentiate between ‘Quaker State’ and ‘Quaker City’ when inquiring for or purchasing oil.”
Another case in point is
Kellogg Co. v. National Biscuit Co.,
Thomson-Porcelite Co. v. Harad,
All of the other authorities cited by appellant are on their particular facts clearly distinguishable.
We therefore hold that even if it be assumed, arguendo, that the name KoolVent had acquired a special or secondary meaning, as to which there was no adequate evidence, the buying public would not have been deceived by the use of the name Cool-Ray, nor by any practices which the defendant has followed.
Decree affirmed at appellant’s cost.
Notes
Italics throughout, ours.