106 F. 914 | 2d Cir. | 1901
The complainant manufactures a soap which it calls “Cutieura Soap.” The same has been advertised at considerable expense, and has become somewhat widely and favorably known. Defendant sells a soap which it calls “Cuticle Soap.” The opinion of the circuit court sets forth in minute detail the manner in which the soaps of the respective parties are prepared for the -market,— liow they are put up, wrapped, lettered, etc. It is unnecessary to repeat this description. The opinion may be found in 102 Fed. 190. We have little doubt that in selecting a name which began with the first five letters of that applied to. complainant’s soap, and which referred, as that did, to the skin, the defendant had some expectation that he might succeed in effecting some sales, at least, on the strength of complainant’s advertising; and if we were able to find anything in box, wrapper, lettering, or general get-up of the package which might tend in any way to produce confusion in the mind of the purchaser, we should not hestitate to grant the relief prayed for. But this element of attempted deceptive resemblance, usually prominent, and, when prominent, controlling (Sterling Remedy Co. v. Eureka Chemical & Mfg. Co., 25 C. C. A. 314, 80 Fed. 105; Proctor & Gamble Co. v. Globe Refining Co., 34 C. C. A. 405, 92 Fed. 357), is wholly wanting, and its absence is not supplemented by any proof that the use of the first five letters of complainant’s trade-word is in itself sufficient to mislead. Under these circumstances, we concur in the conclusion of the circuit court. Decree affirmed, with costs.
