121 F. 1007 | U.S. Circuit Court for the District of Western New York | 1903
The bill, as originally filed, charges the defendant with unlawful infringement of a trade-mark and five trade-names used by complainant upon its various bakery products. A stipulation was filed before answer, admitting infringement by defendant as to five of the trade-names. Accordingly a decree was entered
The defendant’s infringement consists in the use of the registered trade-mark No. 35,597, dated December 18, 1900, issued to the Ohio Baking Company.
“An arbitrarily-selected design or symbol representing an oval-sbaped figure separated centrally and horizontally in the direction of its greatest length by a bar, from which there rises centrally and at right angles thereto a perpendicular bar, which near its upper end is intersected by double horizontal cross-bars, thus forming what might be designated as a “double-T-shaped” figure or cross-tree, while with said oval-shaped section and above the horizontal dividing-bar and to the left of the perpendicular intersecting bar appear the letters ‘I N,’ and on the opposite side of said perpendicular intersecting bar appear the letters ‘E B,’ the lower section of said oval-shaped figure having therein the word ‘Seal.’ ”
The specification describes and the drawings show the design as applied upon a rectangular background, the corners thereof being clipped or irregular. The specification states a preference for the employment of a bright red or orange-colored background in connection with the trade-mark design with the figures and lines printed in white. The specification further says that the purpose and object of the peculiarity of the design is to produce a conspicuous effect, securing the greatest possible /prominence. The design is usually printed on the labels attached to the ends of the cartons or packages containing complainant’s product. This arbitrary and fanciful designation was first appropriated by complainant as a trade-mark for its bakery product, and it is, therefore, entitled to protection from infringement. It quite clearly appears from the evidence that complainant’s trademark has been extensively advertised at large expense throughout the United States and in the locality where the defendant carries on his business of selling bakery products, and where the alleged infringing trade-mark is asserted to have been fraudulently used. The defendant is a dismissed employé of complainant. He was well acqúainted with complainant’s customers in the territory where the alleged infringements were committed. Soon after his dismissal from complainant’s employ, he commenced to divert the trade of complainant by introducing the bakery product of a competitive manufacturer, and finally simulated complainant’s trade-mark, as a result of which his sales increased. Defendant’s bakery product is manufactured by the Ohio Baking Company, and is put upon the market wrapped up in carton form, sealed at the ends, and having a vivid red rectangular label at each end, clipped at the corners. Upon the seals or square labels is
The complainant may have a decree, with costs, enjoining the defendant from imitating or simulating complainant’s “In-er-seal” trademark, as set out in this opinion. So ordered.