117 F. Supp. 116 | D. Del. | 1953
Plaintiff seeks to cancel defendant’s registered trademark for soft drinks and concentrates, “Royal Punch”, No. 381,-897 in the U. S. Patent Office, dated October 15, 1940. Action is founded on
1. Plaintiff petitioned the Patent Office to cancel defendant’s mark. The Examiner of Interferences. granted tbe petition. Upon defendant’s appeal to the Commissioner of Patents, this decision was reversed, and the petition dismissed. Plaintiff elected to bring this action instead of appealing to the Court of Customs and Patent Appeals and filed its complaint here, both parties being Delaware corporations. Upon stipulation of the parties, the case was tried upon the record in the Patent Office proceeding (Cancellation No. 5370).
Both trademarks are applied to goods of the same descriptive properties, soft drinks — although the two flavors differ so widely the most careless fancier of the carbonated beverage would at first sip be startled by the consternation of a palate, prepared for cola but supplied with grape. Plaintiff’s registration is not limited to cola, nor is defendant’s registration to grape. I make allowance in decision for the facts and circumstances attendant upon the ordinary retail purchase of soft drinks, viz., small price, types of purchasers, and places of sale.
The crucial issue is whether “Royal Punch” so simulates “Royal Crown” as to confuse the ordinary, reasonable purchaser to buy the former as the product of the owner of the second mark. Unless confusion is likely among reasonably careful purchasers, plaintiff can not prevail. As stated in a prior decision of this court,
Each of the marks contains two words. Although the first word of each is identical, each mark must be viewed as a whole, since “Combined they constitute a trade-mark which is the subject of protection by the law.”
2. With this pivotal finding of fact, the decision is complete. To gratuitously tackle the matter of laches would be sheer obiter and a truly quixotical venture.
Findings of Fact
1. Each of the parties hereto is a Delaware corporation engaged in the business of manufacturing soft drinks and concentrates for making the same, plaintiff’s main office and plant being located at Columbus, Georgia, and defendant’s at Los Angeles, California.
2. Plaintiff and its predecessors have used the trademark “Royal Crown” on soft drinks and concentrates continuously since 1906
3. Defendant hás used the trademark “Royal Punch” on a grape flavored soft drink and concentrates for same continuously since December 1937
4. The soft drinks of each of the parties are bottled and widely sold to the public by franchised bottlers located in various parts of the United States, plaintiff’s being much the larger business.
5. The trademark “Royal Crown” was originally used on a general line of soft drink flavors, but is now being used by plaintiff on a cola drink exclusively.
6. The trademark “Royal Punch” is and always has been used on a grape flavored drink exclusively.
7. Plaintiff’s mark “Royal Crown” is applied to both bottles and bottle caps.
8. Defendant’s mark “Royal Punch” is applied only to bottle caps.
9. The trademarks “Royal Crown” and “Royal Punch” are not confusingly similar.
Conclusions of Law
1. The court has jurisdiction of this action.
2. “Royal Crown” is a valid trademark for soft drinks and concentrates for making the same, and plaintiff is the owner thereof.
3. “Royal Punch” is a valid trademark for soft drinks and concentrates for making the same, and defendant is the owner thereof.
4. Confusing similarity of trademarks is such simulation as to be likely to deceive or cause confusion as to origin of products to the ordinary, reasonably careful prospective purchasers.
5. The test of confusing similarity of trademarks is not the side by side comparison made in court but the conclusion as to the probable result of a memory comparison of the marks by reasonably careful prospective purchasers.
6. Plaintiff is not entitled under the law to a decree directing cancellation of defendant’s trademark registration No. 381,897.
Complaint dismissed upon presentation of order on notice.
. 60 Stat. 427, 15 U.S.C. § 1051 et seq.
. Telechron, Inc. v. Telicon Corp., D.C., 97 F.Supp. 131 at page 142.
. Q-Tips, Inc. v. Johnson & Johnson, 3 Cir., 206 F.2d 144, 147.
. The record is bare of any instance of actual confusion -which, while not an essential of plaintiff’s case, at least does not detract from the finding.
. The factors suggested by § 729, Restatement of Torts, in determining questions of confusing similarity have been considered. See Q-Tips, Inc. v. Johnson & Johnson, supra, note 3. ■
. Complaint, par. 1; Answer, pars. 1, 2.
. Petitioner’s Record in Patent Office (hereinafter P.R.), pp. 5, 14, 15.
. Petitioner’s Exhibit No. 9. ‘
. Respondent’s Record in Patent Office (hereinafter R.R.), p. 2.
. Petition for Cancellation, Elxhibits C. D.
. P.R., pp. 16-19; Ex. 13, R.R. pp. 4, 8-12.
. P.R., p. 25.
. R.R., p. 2.
. Ex. A to complaint; Ex. No. PX 17 (added at tidal by agreement to the Patent Office record).
. Respondent’s Ex. L