*1 SHAW-BARTON, INC., Plaintiff-
Appellee, CO., Inc.,
JOHN BAUMGARTH Defendant-Appellant. Court of
United States Denied March Spector, Bradley Eben, Morris Ir
ving Goldberg, Chicago, Ill., H. for de fendant-appellant. Foley, Chicago, Ill., Frank J.
pellee. Judge, Before SWYGERT, SCHNACKENBERG and Judges. Circuit SWYGERT, Judge. Circuit This suit was instituted under the fed- statutes, eral trademark 15 U.S.C. 1051 § seq, plaintiff, Shaw-Barton, Inc, et charging defendant, Baumgarth infringement Co, Inc, plain- tiff’s trademark “Homemak- employed asking ers” as plain- tiff’s and defendant’s resulting infringe- unlawful ment. The District the trade- infringed
mark valid and
and decreed
*2
against
makers
etc.” The
should
shipped
judgment provided for
were then
the advertisers
defendant. The
by
“Homemakers;” they
did,
the
the
sustained
minus
of all
by
however, carry
including
“Modern home
realized
the name
аll
infringing
calendar.”
sales.
After
defendant’s cal-
defendant
from its
samples
iden-
appeals.
endar
carried
further
the
From the
tification
calendar”
“Modern homemaker
registered
Plaintiff’s trademark was
just below the name
the month.
of
May 19,
which
The calendar to
that de-
trademark con-
its
shows
The evidеnce
month,
sheets,
of
sists
twelve
for
of
one
each
informed
fendant was
having
large,
early
top
full-
each sheet
a
as
claims at least as
identifying
picture.
space
color
below
There is a
the
to use
but continued
picture
markings
each
name
ac-
the advertiser’s
described above.
right
message;
knowledges
calen-
below
are the
has the
that defendant
month,
dar
copy
dates
the current
the format of
rights
space adjоining
*3
Cosmetics,
same
in the
falls
here in
Bell,
Plus
Inc.
Lanolin
v.
ought
grant-
category,
be
and
not
and
hence
40 CCPA
protection.
therefore,
capable
оf exclusive
trademark
it is not
the ab-
appropriation
as a trademark
finding
judge’s
The
that
trial
acquired
showing
sence
that
it has
aof
descriptive
is
not
is
secondary
Accordingly,
erroneous.
re-
Court
is
of the District
It is well established that where
versed.
descriptive
used,
presump
words are
validity attaching
tion of
to a
Judge
(dissent-
easily
trademark
be
overcome.
ing).
Packing
Morrell &
v.
Co.
Reliable
respectfully
dissent.
(7th
1961).
tration.’ carefully court, con in a
The district decision memorandum sidered support case, of this merits holding Independent & Pack. Co. Nail Cir., 205 7 denied, (1953), 346 cert. 925 F.2d I L.Ed. 391. U.S. S.Ct. well case was reliance
think its long reсognized as has been founded. cited been of this circuit
the law approval times majority seeks other courts. distinguish bar. from the case distinguishable. that it seeking refuge
Finally, after in our
holding Products, Turco Wilhartz v. (1947) Cir., 164 on the issue opin- “[Tjhere was no ion notes pur- of confusion chasing public.” The of “like- relevance usually of сonfusion” lihood found on infringement and unfair com- issues application
petition. I fail see validity is the treated in mark which majority opinion. affirm would cоurt. notes of each date for such no claim exclusive and makes as the user On the wish to insert. thereto. back of informa- each sheet are items of find made no tion that would interest that the term occupation to one whose household and secon plied had to calendars family manаgement. meaning. dary of such In the absence began “Homemak- to sell finding, assume none ex notice that but Products, 164 v. Turco isted. Wilhartz printed on was years mark was the There was no F.2d 731 after until calendar confusion filed. suit was public. purchasing the may confusion 1948, defendant circum under certain be inferred plaintiff’s. format identical in dars consequence stances, if it of little calendars, which defendant sample marks from the use results jobbers exhibited to be to its distributed public domain which lie in soliciting jobbers’ by when salesmen acquired no have advertisers, prospective bore orders presented the cor- рicture, space sample ad below of the District Court’s determi- rectness this notation: “[p]laintiff’s nation good and valid trade- ‘Homemakers’ calendar homemakers This ”* ordinary mark. out retained the full will be hold that the word “Home gift appreciated as makers,” when to calendars suit, noun,1 type is a involved “This homemakers The words one- of that class individuals printed in two and were dar” design proposed height the rest toward half times oriented; During period 1949 to that the use of the words. jobbers’ by in the sense total is not obtained class orders effectively by samples bear- limited less the whole means of the salesmen ing or- limitation would render it These —which less word “Homemakers.” desig print- descriptive and fanciful more defendant who were sent to ders arbitrarily nation, аppli selected appropriate advertiser’s (see Hamilton-Brown Shoe Co. v. twelve sheets cant space on each ad 251, 257, Brothers & 240 U.S. home- statement “This Wolf homemaker, n. 1: that makes a Dic New International 1. Websters Third occupation 1961), tionary home: one whose is house- (unabridged, сontains * * (cid:127) family management. following hold and of homemaker: definition “carpenter’s” lad- forms that word such L.Ed. 36 S.Ct. “carpen- recog- ders, hammers, “carpenter’s” readily and saws, ter’s” etc. We believe between nizes association (see Bonne as used the class users uct and