215 F. 527 | 6th Cir. | 1914
(after stating the facts as above)..
Whether any exclusive rights which, in an essential part, depend on this statute can extend to the regulation of strictly intrastate commerce, or whether the effect must be limited to the field where Congress had power to act, is an interesting question, which is only suggested, but not presented, by this record. It is not raised by assignment of error or by the briefs. We, therefore, give it no consideration.
3. There remains the question whether the mark is deceptive. Defendant does not expressly make this point, but it is so bound up with the questions of how merely descriptive the words are, and whether thé same words as used by defendant are only the rightful name of its product, that it must be decided. The act of 1905 makes no exception in this respect, but we assume that if the registered words clearly carried deception, and if their use really represented to the purchasers that the article was something essentially different from the thing which they actually received, the courts would not enforce any exclusive rights under such registration, both because plaintiff would come into court with unclean hands (California Co. v. Stearns, 73 Fed. 812, 816, 20 C. C. A. 22, 33 L. R. A. 56), and because such words could not be within the fair contemplation of the act, when it refers to “any mark * * * which was in actual and exclusive use as a trade-mark,”
The argument is that the use of the name, “Coca Cola,” implies to the public that the syrup is composed mainly or in essential part of the coca leaves and the cola nut; and that this is not true. The fact is that one of the elements in the composition of the syrup is itself a compound made from coca leaves and cola nuts. This element becomes a flavor for the complete syrup, and is said to impart to it aroma and taste characteristic of both. This flavoring element is not in large quantity (less than 2 per cent.), but it is impossible to say that it does not have appreciable effect upon the compound. The question then is whether the use of the words is a representation to the public that the syrup contains any more of coca or of cola than it really does contain.
Plaintiff’s counsel say, and so far as we see accurately say:
“The use of a compound name does not necessarily * * * indicate that the article to which the name is applied contains the substances whose names make up the compound. Thus, soda water contains no soda; the butternut contains no butter;, cream of tartar contains no cream; nor milk of lime any milk. Grape fruit is not the fruit of the grape; nor is bread fruit the fruit of bread; the pineapple is foreign to both the pine and the apple; and the manufactured food known as Grape Nuts contains neither grapes nor nuts.”
Many names which, as to the* claim that they are so descriptive as to be deceptive in the manner in which they are used, must be classified with Coca Cola, have been sustained as proper trade-marks. The Court of Appeals of New York thought that “Sliced Animals” was not merely descriptive, and was capable of exclusive appropriation. Selchow v. Baker, 93 N. Y. 59, 45 Am. Rep. 169. The same court considered “Bromo Caffeine.” Defendant in that case insisted that he could call his product “Bromo Caffeine” because it was, and because plaintiff could not adopt, as a trade-mark, the words so indicating the composition of the article. It was decided that while the name indicated a compound of caffeine with some bromide, this indication was too vague and indefinite to put the name beyond the forbidden limit. The discussion by Judge Peckham is thoroughly applicable to the instant controversy. Keasbey v. Bromo, etc., Wks., 142 N. Y. 467, 474, 476, 37 N. E. 476, 40 Am. St. Rep. 623. A very similar case is that concerning “Lacto Bacilline.” Application of La Societe Ferment, 81 L. J. R. 724.
“If said words, as hero combined, have any sense, as descriptive of the class of goods In question, it is not so pronounced, obvious, and usual as to make said combined words unfit, inappropriate or misleading, as a name, sign, or mark of origin of complainant’s goods.”
Cases like Standard Co. v. Trinidad Co., 220 U. S. 446, 31 Sup. Ct. 456, 55 L. Ed. 536, are sharply distinguishable. In that case, it was found as a fact that the word involved, “Rubberoid,” was in common dictionary use as an adjective, so that it was merely descriptive. There was no room for it to carry any arbitrary character in addition. This feature, with its attendant distinction, is typical of the cases relied upon by appellant. When it cannot be said that the words “Coca Cola,” from 1895 to 1905, gave to the public “reasonably accurate, and tolerably distinct knowledge as to what the ingredients”
Upon both appeals, the judgment below is affirmed.
But see Coca Cola Co. v. American Co. (D. C.) 200 Fed. 107, where Judge Lacombe thinks this form to be an infringement.
This case is more fully reported in the Official Journal of the Patent Office, “Reports of Patent and. Trade-Mark Cases, Vol. 29,” before Justice Joyce, at p. 149, and on appeal, at p. 497, Justice Joyce was reversed. These reports are in the old English method, and the discussions between court and counsel cover every phase of the question.
Judge Peekham’s language in Keasby v. Bromo, etc., Wks.