256 Mass. 456 | Mass. | 1926
The case comes before this court on appeals of the plaintiff from the interlocutory decree overruling its exceptions to and confirming the report of the master, to a denial of its motion to recommit the report, and to the final decree dismissing the bill of complaint with costs.
The material facts found by the master briefly stated are as follows: Both the plaintiff and defendant were incorporated in 1901 and since that time have been engaged in the manufacture of candy, the business of the plaintiff being in Boston and that of the defendant in Cambridge. The bill charged that the defendant was engaged in unfair competition, in that it had copied for a wrapper of a candy wafer, manufactured and sold by it, a label used by the plaintiff on its own candy wafer wrapper; that the defendant’s label was an imitation of the plaintiff’s, which the latter had recorded as
“The plaintiff’s wafer rolls are a simple form of candy and are retailed at such low figures that they especially appeal to and find a large market among children, foreigners and illiterates. They are sold in large quantities to the travelling and amusement seeking public, on trains, excursion boats and other conveyances, in railway stations waiting rooms, and in recreation parks, and other places of amusement. They are offered for sale in the baskets or trays of train boys, or on the counters of news or candy stands located in subway or railroad stations or on boats or in amusement resorts, as well as by other small shopkeepers and petty retailers; ordinarily a considerable number of said packages or rolls being arranged side by side in a box or tray carried about by the vendor, or lying upon the counter or in the shop window, and so displayed as to catch the eye of the chance passer-by.”
In May, 1906, the plaintiff adopted a label which had a seal in the center with the word “Neceo” on the left and the word “Wafers” on the right. This label had solid black lettering on yellow glazed paper. Since that time “Neceo Wafers” have been sold by the plaintiff always in a roll and since 1914 in transparent paper. The label used has always borne a seal which is the trade mark of the plaintiff and is registered in the United States Patent Office and has the word “Neceo” on the left of the seal and the word “Wafers”
The defendant has manufactured and sold Boston Wafers since 1906, but the record does not disclose the extent of the sales or whether they were equal to the sales of the plaintiff. Before 1910, the defendant used for the rolls a wrapper of opaque yellow paper, on which was printed a scroll with the word “Boston” on the left and the word “Wafers” on the righk, the lettering being in black. In 1910 the defendant adopted a transparent paper with a scroll in the center, the word “Boston” on the left and the word “Wafers” on the right, the lettering and the scroll being in blue. In 1917, the defendant adopted a label with the word “Briggs” in the center, the word “Boston” on the left and the word “Wafers” on the right, the word “Briggs” being in red and “Boston” and “Wafers” in blue. The defendant did not use the scroll on its label from 1917 to 1922.
In June, 1922, the defendant adopted its present label, which has in a scroll lined in red on a white background the words “C. A. Briggs’s Co.” in red; and on the left of the scroll, the word “Boston” and on the right the word “Wafers,” both in blue. The blue color in the label of 1922 was darker than that previously used by the defendant, and the words were larger, the area of blue and red colors being about three times the color area in the defendant’s prior label.
“Prior to the adoption of the label complained of in 1922 an employee of the defendant suggested that a new label be adopted by the defendant. At this time the defendant thought that the plaintiff’s wafer roll was the largest selling roll on the market. A designer was consulted, shown the label of the plaintiff and asked to design something better. Various designs were offered by the designer and discussed by the defendant’s president, two employees and the designer. Finally the label complained of was adopted.”
The master found that the label of the defendant adopted in 1922 resembles that of the plaintiff in the following particulars : (A) ‘ ‘ The words 'Neceo W af ers ’ and 'Boston W af ers ’ are blue and of the same shade or nearly so”; (B) “The scroll used by the defendant is of the same shade of red as the seal used by the plaintiff”; (C) “The area of the letters forming the words 'Boston Wafers’ is nearly the same as the area of the letters forming the words 'Neceo Wafers’, the area of the letters forming the words on the defendant’s label being about 9% less than the area of the letters forming the words on the plaintiff’s label”; (D) “The area of the scroll on the defendant’s label is nearly the same as the area of the seal on the plaintiff’s label”; (E)'' The height of the letters forming the words ‘Boston Wafers’ is nearly the same as the height of the letters forming the words ‘ Neceo Wafers’ ”; (F) “The label of the defendant like that of the plaintiff has double printing”; (G) “The label of the defendant has a general resemblance to that of the plaintiff there being two words of blue in each label with a red symbol between the words”; and differs from that of the plaintiff in the following particulars: (A) “The word on the left in the defendant’s label is ‘Boston’ while on the plaintiff’s label it is ‘Neceo’”; (B) “The shape of the letters forming the words 'Boston Wafers’ is not the same as the shape of the letters forming the words 'Neceo Wafers’”; (C) “The shape of the scroll on the label of the defendant is not the same as the shape of the seal
The evidence not being reported, the master made the following findings, which the judge of the Superior Court, “after careful inspection of the labels and consideration of all the facts found by the master,” adopted and found warranted, namely:
“14. I find no evidence of intent on the part of the defendant to use a label that would be mistaken for that of the plaintiff unless the adoption and use of the label complained of be regarded as such evidence.
“15. I find that the sales of the ‘Boston Wafers’ increased after the adoption of the new label in 1922 but there was no evidence that the increase of sales of wafers of the defendant was in a greater proportion than the increase of the sales of other goods manufactured by the defendant. There was no evidence of the amount of the defendant’s sales.
“16. There was no evidence presented showing that the defendant had passed off its wafers as and for the wafers of the plaintiff unless certain testimony regarding the price at which Boston Wafers were sold, and which was excluded, would have constituted such evidence; nor was there any evidence that any one desiring to buy the wafers of the plaintiff as distinguished from any other wafers had been deceived into accepting the wafers of the defendant as and for the wafers of the plaintiff. I find that the sales of the wafers of the plaintiff have increased since 1922 when the label complained of was adopted by the defendant.
“17. I find that the defendant after complaint was made by the plaintiff continued to use the label complained of claiming that it was within its rights in so doing.
“18. I find that the label of the plaintiff was registered under the provisions of Massachusetts G. L. c. 110, § 8, in*463 December, 1922. I also find, if it be material, that the defendant had no notice of such registration.
“19. I find that the colors red and blue for letters op the wafer rolls, the transparent paper for wrapping such rolls, and the words 'Wafers’ have been used for many years by manufacturers of candy other than the plaintiff and defendant. There was no evidence showing definitely just how long or to what extent any other manufacturer had used these features. I find that in at least three cases, namely: Nawaco Wafers (Exhibit 11), Skylark Wafers (Exhibit 16), and Rex Wafers (Exhibit 13) the wrappers had words with blue letters with words or symbols in red between the words in blue, thus giving a general appearance similar to the label of the plaintiff although not so closely similar as is the label of the defendant. There was no evidence showing large sales of wafers by the manufacturers other than plaintiff and defendant.
“20. I find that neither plaintiff nor defendant has exclusive right to the use of blue or red letters or symbols upon a white background on a wrapper for wafer rolls or to the use of the word 'Wafers’ on such rolls.
“21. I find that when the labels are placed unrolled flat against a buff wall a person of normal vision can distinguish the words 'Boston Wafers’ on the label of the defendant from the words 'Neceo Wafers’ on the label of the plaintiff at a distance of ninety-eight (98) feet and can distinguish the smallest detail of the letters in the words 'Boston Wafers’ and 'Neceo Wafers’ at a distance of thirty-seven (37) feet.
“22. I find that persons of normal vision using such care and observation as the public generally are expected to use in such matters would not be likely to mistake the label of the defendant for that of the plaintiff.
“23. I find, however, that the general appearance of the roll of the defendant is so similar to the general appearance of the roll of the plaintiff that a careless person or a young child might mistake the label of the defendant for that of the plaintiff.”
The plaintiff waives in its brief all exceptions except those numbered 8, 12, 13, and 15, and its appeal from the
Exception 15 is based on the plaintiff’s request that the master should find “the defendant intended that its label should resemble the label of the plaintiff to a degree that it should be taken by the purchasing public, or some part thereof, as the product of the plaintiff.” The plaintiff’s request for the finding of fact above quoted, which was refused by the master, was sought by it as a necessary conclusion of fact from the master’s findings that “At this time [1922] the defendant thought that the plaintiff’s wafer roll was the largest selling roll on the market,” and as a consequence “A designer was consulted, shown the label of the plaintiff and asked to design something better”; that “Various designs were offered by the designer and discussed by the defendant’s president, two employees and the designer,” and that “Finally the label complained of was adopted.” The answer to this contention is that the master found on consideration of all the facts reported and of the unreported evidence of witnesses that “There was no evidence presented showing that the defendant had passed off its wafers as and for the wafers of the plaintiff [outside of certain testimony which was excluded and which by reason of the waiver of the plaintiff is not before this court3 . . . nor was there any evidence that any one desiring to buy the wafers of the plaintiff as distinguished from any other wafers had been deceived into accepting the wafers of the defendant as and for the wafers of the plaintiff. . . . the sales of the wafers of the plaintiff have increased since 1922 when the label complained of was adopted by the defendant.” This" finding, in connection with all the other facts of the report, warranted the refusal of the master to find the defendant intended the label “should resemble the label of the plaintiff to a degree that it should be taken by the purchasing public, or some part thereof, as the product of the plaintiff.” In any view we cannot say the refusal was clearly wrong involving as it does a finding of fact upon reported and unreported testimony. This exception is overruled.
Exception 13, that the master refused to find that the “public would be confused into believing that the defendant’s product is the plaintiff’s if both are sold in the trade,” could not consistently stand with other findings of the master, and must be overruled. Fay v. Corbett, 233 Mass. 403, 407. The test is the effect on persons of average intelligence and on persons of ordinary prudence and caution among those who purchase the class of goods in question, and the judge was right in disregarding the effect on such persons as “chil- j dren, foreigners, and illiterates,” who are not endowed with intelligence, vision, prudence and caution. Dunlop Pneu
A careful examination of all the contentions of the plaintiff discloses no reversible error. It results that in the opinion of a majority of the court the interlocutory and final decrees are affirmed, with costs.
Decree accordingly.