220 F. 650 | 7th Cir. | 1915
The 'bill in this case first charges the appellee, hereinafter termed defendant, with infringement of the registered trade-mark “Sal-Vet,” hyphenated, belonging to appellant, hereinafter called complainant, by the use of the registered trade-mark “SalTone,” not hyphenated, and then, secondly, charges unfair competition. On final hearing the District Court dismissed the bill for want of equity.
*652 “No sign or forro of words can be appropriated as a valid trade-mark, which from the nature of the fact conveyed by its primary meaning, others may employ with equal truth, and with equal right, for the same purpose. * * * Nor can a generic name, or a name merely descriptive of an article of trade, of its qualities, ingredients, or characteristics, be employed as a trade-mark, and the exclusive use of it be, entitled to legal protection.”
In the opinion rendered by the Circuit Court of Appeals for the Eighth Circuit in said cause — 163 Fed., pp. 979 and 980, 90 C. C. A. 195 — the authorities upon this subject are exhaustively cited.
In the paraphrasing of complainant’s advertising literature and the .■approximation of its pictorial matter, defendant’s actions were unethical rather than fraudulent. It is not shown that defendant ever sought, ■in its regular trade, to sell its product for that of complainant, but has insisted that “SalTone” was much the same and just as good as “Sal-
The evidence discloses somewhat overzealous business competition rather than unfair competition or fraud. There is shown no imposition upon nor complaint by the public with regard to the five decoy orders. It appears that no one was defrauded or deceived. The goods shipped to fill the same, while of similar packages to those of complainant, in shape, were plainly marked “SalTone,” and carried in distinct form and colors the notice that they were made by the defendant, as did all defendant’s other goods on the market. While the action of defendant in filling these orders was reprehensible as a business transaction, it did not amount to such a degree of unfairness or fraud as would justify penalization by the granting of the relief asked for by the bill. Throughout the record it appears that defendant always used its own name as proprietor, and the trade-mark of its product, “SalTone,” and that the packages did not so closely resemble each other as to be misleading to one with any discriminating sense. The confusion, if it amounts to that, was brought about by the carelessness of purchasers, who appear to have been more anxious to procure a specific for the cure of animal diseases than to buy any particular preparation.
The facts do not bring the case within the rule obtaining in cases of unfair or fraudulent competition.
The decree of the District Court is affirmed.