Thе defendant obtained a decision by the trial judge that the plaintiff could not rer cover for injury to its trade mark» “S.P.I. G.A.” because the mark was merely descriptive, and that no claim fоr unfair competition was established because at no time during the course of the dеfendant’s acts did the plaintiff sell any of its products in this country. We think that neither conclusion was well founded.
The Patent Office had allowed registration of the trade mark and its action created a strong presumption in favor of the validity of the mark. See Planten v. Gedney, 2 Cir.,
The attempt of the defendant to distinguish betweеn the five letters “S.P.I. G.A.” and the word “Spiga” where the letters were not separated seеms to be essentially a distinction without a difference. The two forms in which this trade mark was used сarried an essentially identical significance to a buyer. The trial judge found that the word “sрiga” meant “head of the wheat.” The use of the word in respect to alimentary paste in any of its forms, including macaroni or spaghetti, was in our opinion fanciful and not desсriptive. See Hamilton-Brown Shoe Co. v. Wolf Bros. & Co.,
“The Court: * * * Is that [spiga] a common word in the macaroni trade ? Do macaroni dealers use that word?
“The Witness: Yes.
“The Court: Now, do people who •buy — people who come into your store — is that a word that is commonly *327 used by them and well known, the word spiga?
“The Witness: Yes.”
There was somе further indication in the Defendant’s Exhibit E that the word “Spigadoro” accompanied by reрresentations of a spiga had been used in Italy on a package of spaghetti at an unidentified date. We we do not think such proof sufficient to establish that the word “spigа” was not fanciful, or to defeat the validity of the plaintiff’s registered trade mark. It seems сlear from the foregoing that the plaintiff has proved an infringement of its valid trade mark аnd is entitled to an injunction restraining defendant from further acts of infringement.
The plaintiff’s claim for unfair competition was likewise adequately proved so far as it was based upоn the practical identity of the wrappers used by plaintiff and defendant. The finding below disposed of the contention by the defendant that the plaintiff never used its wrapper. Thе trial judge was mistaken in indicating that proof of actual instances of deception is necessary to establish such a claim. See Miles Shoes, Inc., v. R. H. Macy & Co., Inc., 2 Cir.,
As we have already indicated, there was some proof of both trade mark infringement and unfair competition in the copying of plaintiff’s wrapper. For this the latter would 'be entitled to recover damages if the defendant intended to benefit from the plaintiff’s reputation. Restatement of Torts § 745. As a measure of this damage the plaintiff may be аble to show that the defendant realized profits which the plaintiff would have received if allowed to sell its products without interference. Restatement of Torts § 747. For any pеriod during which plaintiff was unable to send its products to this country because of the war or оther circumstances it would not be entitled to receive defendant’s profits. Consequеntly the plaintiff is entitled to an accounting. As a further measure of damages plaintiff would be entitled to prove injury to its reputation through sales by the defendant of an article inferior to that which the plaintiff had put on the market in the past. Restatement of Torts § 746. The рlaintiff seeks to have trebled any damages which may be proved. But Under the statute this is a disсretionary matter for the trial court with which this court now has no concern. 15 U.S.C.A. § 96; § 1117.
For the foregoing reasons the judgment of the court below is reversed and the cause remanded with dirеctions to proceed in accordance with the views expressed in this opinion.