220 F. 1002 | D. Utah | 1914
A certain proportion of the ultimate purchasers of such a lard substitute will be found among the uneducated and inexperienced, to whom the two names wilf convey no idea, except as they are associated with the product bought, and who, without heedlessness, may well be misled. Any doubt as to this should be resolved against the defendant, for it had a wide range of selection, and, knowing the existence of the plaintiff’s trade-mark, approximated it. It is difficult to avoid the conclusion that it was intended by this approximation to obtain an advantage through the plaintiff’s efforts to popularize Cot-tolene, so far, at least, as to convey to the purchaser the idea that ■Chefolene was a similar article, intended and adapted to the same uses. This, in itself, was not unlawful; but it imposed the duty to use care to so discriminate the two names that a purchaser could not be deceived. The argument for the defendant that the distinction between the roots ■of the two words is so patent that the similarity of endings cannot confuse is ingenious, but hardly persuasive. This is doubtless true with a limited number of purchasers, who would readily associate the root with the idea suggested; but the plaintiff’s good will is not so restricted, and must be protected in its broader field.
The cases are numerous in which names, differing as radically as the two here, have been 'held the one to be an infringement of a trade mark in the other. As illustrations: The names Mojava and Momaja, American Grocery Co. v. Sloan (C. C.) 68 Fed. 539; Cotoleo and Cottolene, N. K. Fairbanks Co. v. Central Lard Co. (C. C.) 64 Fed. 133 ; Cellonite and Celluloid, Celluloid Mfg. Co. v. Cellonite Mfg. Co. (C. C.) 32 Fed. 101; Sapono and Sapolio, Enoch Morgan’s Sons v. Ward, 152 Fed. 691, 81 C. C. A. 616, 12 L. R. A. (N. S.) 729; Bovina and Boviline, Lockwood v. Bostwick, 2 Daly (N. Y.) 521; Sartoris and Sorosis, Little v. Kellam (C. C.) 100 Fed. 353.
The plaintiff is entitled to the usual decree for an injunction and an accounting; and it will'be so ordered.