257 F. 270 | 7th Cir. | 1918
For alleged infringement of trade-mark and for alleged unfair competition appellant sued Lamont, Corliss & Co., selling agents of Mint Products Company. That company reciprocated with a like suit against appellant.' In addition to taking issue by answer, appellant in a cross-bill again asserted that it was the aggrieved party. On final hearing appellant’s bill against Lamont, Corliss & Co. and its cross-bili against Mint Products Company were dismissed for want of equity. With respect to Mint Products Company’s bill a decree was entered that Mint Products Company was the exclusive owner of the trade-mark or name “Pep-O-Mint” and also of the word collocation and descriptive appearance of the wrapper inclosing its mint lozenges; that appellant had infringed said trade-mark or name and also had simulated said wrapper; and that appellant be enjoined—
“from engaging in unfair competition with Mint Products Company, and from putting up or selling mint lozenges under the trade name or mark ‘Pep-O-Mint,’ or any simulation thereof as to style of lettering or letter arrangement and design, or so wrapped in labels or contained in cartons that may be mistaken for the goods of Mint Products Company.”
Appellant’s verified statement alleged that the trade-mark consisted of the exhibited design and explicitly disclaimed the words “Peptomint” and “Gum.”
In 1915 appellant filed a second application and thereupon procured the registration of the following trade-mark:
Appellant’s verified statement alleged that the trade-mark consisted of the exhibited design and explicitly disclaimed the word “Gum.” Inferentially appellant sought to assert a trade-mark right in the word “Peptomint” by saying:
“No claim is made to the word ‘Mint’ except in association with the word ‘Pepto.’ ”
Appellees in 1913 began to make and sell candy lozenges, of various flavors, under the trade-mark “Life-Savers.” Their lozenges were somewhat of the form of a life-buoy and were done up in cylindrical packages. Flavors were prominently marked by a peculiar style of printing, • displayed along one side of the cylinders, “Pep-O-Mint,” “Choc-O-Late,” “Wint-O-Green,” “Malt-O-Milk,” “Cl-O-Ve,” “Lic-ORice.” Letters, white on a purple background, were graduated in size, the largest at the ends, the others diminishing toward the round O at the center.
In 19Í4 appellant notified appellees that they were infringing the trade-mark “Peptomint” by the use of “Pep-O-Mint” on their peppermint-flavored “Life-Savers.” This was the first that appellees knew of appellant’s claim of “Peptomint” as a trade-mark. Appellant began its suit in 1916 and counted upon the 1915 registration.
Concerning unfair competition, appellees in marketing their cándy lozenges did not in any way imitate appellant’s gum labels and packages and did not attempt to palm off their goods as appellant’s. They did not in any way molest appellant in its fair-trade rights, for appellant cannot be allowed trade rights in any form that would prevent appellees from marking the various flavors on their packages of “Life-Savers” as they did.
But the decree against appellant is too broad. Mint Products Company can be allowed no exclusive ownership of the word “Pep-O-Mint” as a trade-mark. It was used to indicate the flavor of one of several kinds of “Life-Savers.” What was owned was the distinctive style of wrappers and cartons, including the particular way in which the word
Decree modified and affirmed.