229 F. 560 | 3rd Cir. | 1916
On final hearing, the court below, in an opinion reported at 225 Fed. 138, held the Dreadnaught Company was guilty of unfair competition in its markings and sale of certain tires known in the trade as “seconds,” and entered a perpetual injunction enjoining such markings. From this part of the decree the Dreadnaught Company has not appealed. As to the other acts complained of, viz., the sale of other tires, the court held “that, unless in connection with the sale and disposition of the defendant’s 'seconds,’ the bill cannot be sustained,” and entered a decree “that in other respects the bill of complaint be and the same is hereby dismissed.” From such part of the decree the plaintiff took this appeal.
*562 “The package containing the complainant’s tire has on each side in large and- unmistakable type the word ‘Pennsylvania’ in connection with the monogram hereinbefore mentioned. The package containing the defendant’s tire is of a different color and has running completely around its periphery the words and figures ‘Dreadnaught Tires 5000 Miles’ several times repeated. It is quite as difficult to conceive that any ordinarily intelligent and careful purchaser should be misled by the package of the defendant into a false belief as to its contents as that lie should be deceived by seeing the defendant’s tire when unwrapped. There is not the slightest evidence so far as the appearance of the defendant’s tire or its package is concerned of any design or intention on its part that either of them should be mistaken for the tire or package of the complainant. It is further to b.e observed that it is reasonable to expect closer attention on the part of a retail purchaser to such articles as automobile tires than to pocket knives or packages of chewing gum. Further, nowhere in the circulars, advertisements or other literature of the defendant is there disclosed anything intended or calculated to deceive or create, confusion in the minds of the purchasing public as to the origin or ownership of its tires. Distinguishing words are so used as to prevent deception or misunderstanding. Still further, it does not appear from the evidence that there was any case in which one desiring to purchase the complainant’s tire was misled into a belief by the appearance of the defendant’s tire or its package that the defendant’s tire was that of the complainant. I am satisfied that unless in connection with the sale and disposition of the defendant’s ‘seconds’ the bill cannot be sustained.”
No present or prospective confusion of product being shown, and the court below having fully and satisfactorily discussed the case, we refrain from needless repetition and restrict ourselves to adopting its opinion‘and affirming its decree, with this addition, that the bill be dismissed without prejudice to complainant’s right to renew the same, if any confusion of goods should hereafter develop in the course of trade.