92 F. 357 | 6th Cir. | 1899
having stated the case as above, delivered the opinion of the court.
Upon this appeal the appellant relies not so much upon the infringement of its trade-mark as upon its complaint that the use by the defendant of its label is an unfair competition in trade. To the question whether it is so or not, the briefs and arguments of counsel are mainly directed. This being an appeal from an order denying a preliminary injunction, the question to be determined is whether the discretion of the court below was improvidently exercised and not whether, upon the final hearing, upon full view of all the facts in the case, this court would, upon the evidence before it, reach the same conclusion as that of the court below. Duplex Printing-Press Co. v. Campbell Printing-Press & Manufacturing Co., 16 C. C. A. 220, 69 Fed. 252; Garrett v. T. H. Garrett & Co., 24 C. C. A. 173, 78 Fed. 472. To justify this court in reversing an order of this kind, is must be quite clearly apparent that a mistake was committed by the court below. Ritter v. Ulman, 42 U. S. App. 263, 24 C. C. A. 71, and 78 Fed. 222.
By the test applicable to such an appeal, we proceed to consider what appear to us to be the material facts of the controversy, so far as they can be ascertained from the record of the proceedings before the circuit court. This involves principally a comparison of the labels of the respective parties involved in the second application for an injunction, but incidentally it will be proper to give some attention to the label used by the defendant before the injunction was granted upon the original motion; it being insisted by the appellant that, by reason of the defendant’s having diverted in part the trade of the complainant by the use of its first label, the use of the second label, which it is charged is only a colorable variation of the first, enables the defendant more effectually to absorb the complainant’s business. The packages in which the respective parties put up their soap for the market are similar in form and size, being about 4 inches long, 2f inches wide and 1| inches thick. The label of the complainant, printed upon the wrapper on the upper fiat surface of the cakes, consisted in large part of the words “Every Day Soap”; the first two words being in large, fancy letters, in a curved line in the upper part of a rectangular space about the size of the cake, and the word “Soap,” also in large, fancy letters, under the former words. In the lower left-hand corner is a circular figure about three-fourths of an inch in diameter, in the resemblance of a full moon bearing a human face within it looking to the left; the rest of the contents of the circle being a black field, with 13 white stars thereon. At the right of this, and extending across three-quarters of the length of the label, are the words “Proctor & Gamble,” and under these the word “Cincinnati,” all in good-sized letters. There is some additional matter of ornamentation. All the foregoing characters were stamped or printed upon the face of light-yellow paper. Upon one edge of the cake, or rather upon the wrapper where it covers the side of the cake, there were printed the words, “Manufactured at Ivorydale,” “Factories conducted on the profit-
Having given this somewhat minute description of the labels which make the ground of the controversy, it remains to consider whether there was fair ground for the conclusion of the court below that a preliminary injunction should be denied.
The sharp competition in business of recent years has brought about a great increase in suits of this character, and the decisions
The complainant alleges, among other things, that it has for many years put up its soap in the form, size, and color of package in which it now does, and that from these peculiarities and its labei the public have thereby become familiar with its goods; and it is further charged that the defendant imitates its package, in the form and size of it, as well as the color of the wrapper. But, if it were conceded that the complainant could acquire an exclusive privilege to the use of
Much reliance is placed upon the decision in the case of Garrett v. T. H. Garrett & Co., 24 C. C. A. 173, 78 Fed. 472, where this court reversed an order refusing a preliminary injunction. In that case the complainants had long been in the manufacture and sale of a snuff which bore the brand and was known to the trade as “Garrett’s ¡Audi,” and liad a high reputation. The defendants organized a corporation with 350 shares, and took in one T. H. Garrett, with 2½ shai-es, in order to give color to the employing the word “Garrett” in their corporate name. The corporation thereupon engaged in the snuff business, and sold their product as “Garrett’s Snuff.” We quote from the opinion of the court, at page 474, 78 Fed., and page 174, 24 C. C. A.:
“Tlie labels and devices used by the defendant company under its original organiza Mon were, in llieir general design and appearance, close imitations of complainants’ labels and designs. The cans, packages, labels, and wrappers of complainants were almost literally copied by the defendant company, excepting that ‘T. II. Garrett, Louisville, Ky.,’ was substituted for ‘W. JÜ. Garrett, Philadelphia.’ The color of defendant’s labels was the same as that of complainants’. The type used for the printed matter on the labels was similar in general appearance, arrangement, and general effect.”
From this it appears that the only material difference between the labels of the parties, or otherwise shown upon their packages, was in the initials of the word “Garrett,” and the place of manufacture. In the present ease, as’ we have shown, the points of resemblance are few, and the differences many, and the latter exist in
^be differences are less conspicuous than the general resemblance between the two. At the same time, they are such as could not fail to impress them-suires upon a person who examined them with a view to ascertain who was the real manufacturer of the thread.”
. And see the observations of Mr. Justice Lamar in Corbin v. Gould, 133 U, S., at pages 312, 313, 10 Sup. Ct. 312.
Upon the whole, we are satisfied that at least there was no “plain error” in the order of the circuit court, and it is accordingly affirmed.