*1 situation, elsewhere, issuance of a check the contractor. the indebted- United the amount his States the best secured of credi debtor for tors; justified security payee absence of not in the its re ness agreement the payment pay paid fusal it until what owes it stipu- discharge debt, points to the what is due it. Mun United States v. the sey showing Co., page no was that there Trust U.S. at lation agreement no circum- case and S.Ct. at inferred, one could be stances plain We think the district it attempted in law the and to the fact that assignment by taxpayer wrong judgment his surety must be reversed with directions under to become due due and sums government govern- cause return of the check to the and in- was invalid contract ment so that it cancel it and effect against the United States effective the set-off which is it entitled. Anti-Assignment Statutes, Because of the above set out answer Statutes, 31 Revised 3477 of the Sec. question, unnecessary to, U.S.C.A. § not, appellant’s and we will consider Marshalling particularly authorities, question. second Munsey Trust v. United States judgment reversed 91 L.Ed. 67 S.Ct. cause is remanded with directions. v. Bank & Side Trust South States, United pointing Bank in Central out States, United by appellee, relied assignment a bank under a was to Assignment statute, special of Claims insisting States, United Act COMPANY, BROTHERS The WARNER arguments appellee’s on exonera that tion, Plaintiff-Appellant, equitable subrogation lien are urges mark, upon wholly beside the Inc., Defendant-Appellee. JANTZEN, check re the fund evidenced No. Docket 24567. legally possession and con mained subject United trol being States Court of United States against indebted tax set off Second Circuit. taxpayer. ness owed 10, 1957. Argued Oct. agree. If United States had 12, 1957. Decided Nov. check, no we believe not issued the entitled, un- claim was not would that it Munsey generally case and the der the controlling principles, protect itself. contractor, debts owed
As to presented and no authorities reason is support view that the issu-
cited to changed check in manner ance of the government’s right set- or affected the applicable law. The cases cited off under good enough
by appellee, law for while facts, support all its con- do not at None of case.
tention this, like with a situation dealt having States, paid the United against assert, contractor, seeks against surety’s claim, off-set
fendant and other manufacturers.” F.Supp. on a Plaintiff relies registered 1932-33, but trade-mark betrayed some weakness then it necessary the com to embellish fanciful mon word to contrive for its brassieres. “A’Lure” as the mark competitive of But in so crowded a field advertising for trade as goods, rival claims are women’s pause continuously pressed let without through printed over the air and page, consumers it is not conceivable that of of the lack awareness the existence rivalry Nor, appre we trade involved. hend, buyers so naive as regard differing inevitably and “Curvallure” brassieres single manufacturer, product of found even without the added factor word use its coined did not alone, always joined it with widely consisting known trade-mark representation “Jantzen” and a the name diving girl. ad Insistent American faults, surely vertising, whatever its degree sophistication induced certain Accordingly all. wariness agree Judge Harry Pugh, Jr., City (E. conclusion of New York Cashin’s Deg- noninfringement Cummings accept and Donald E. his convinc Sanborn ling, opinion, D.C.S.D.N.Y., F.Supp. City, brief), York New for plaintiff-appellant. 531, 533-534, as our own. Harry Cohen, Levisohn, Niner & Affirmed.
Cohen,
City (Edwin Levisohn,
New York
Levisohn,
Cohen,
Niner &
New York
LUMBARD,
(dissent-
Circuit
City,
brief),
defendant-appel-
on the
ing).
lee.
my opinion
policy
our trade-
CLARK,
Judge,
Before
Chief
laws,
increasing
awareness
MOORE,
Judges.
LUMBARD and
Circuit
desirability
public
of the
against possible
regarding
PER CURIAM.
origin of merchandise and at the same
piracy
too much in
asks
time
commercial
seeking
private monopoly
in the com
which the trademark
laws are
applied
protect,
mon
“allure”
require
word
to certain
to create and
ap
articles of feminine adornment and
that we resolve
doubts in favor of
parel.
competent
the court found on
who
and use
own
valid trademarks.
evidence,
protected
word or
coined words de
Brothers should
Warner
be
“have,
long
period
for a
promo-
rived therefrom
“A’Lure” in the
use
years,
brassieres;
been utilized as
tion
of their
sale
types
subjected
pos-
feminine
various
accoutrements
should not be
pads,
girdles,
hosiery,
bust
swim
confusion which
sible
be caused
sweaters,
coats,
dresses,
suits,
skirts, un
Jantzen’s
“Curvallure” to sell their
like, by
dergarments
products.
competing
both the de-
Company
the own-
Nor
does the use
Warner Brothers
word “War-
ner’s”
er
before
“A’Lure” or the word
appreci-
for brassieres
“Jantzen’s” before “Curvallure”
*3
ably
It has
in 1953.
and
renewal
diminish the
continued
likelihood of confusion.
pointed
Shoes,
1932.
this
The
Court
since
in
used
out Miles
valid,
Inc.,
Macy Co., Inc.,
supra,
Court
found the mark to be
v. R. H.
has
&
infringed by
goods
“the
ruled that it was
fact
it has
that the
on which the
adver-
identical, together
Jantzen’s use of “Curvallure”
tising
marks are affixed are
marketing
Al-
its brassieres.
with
and
the additional fact
the two
validity
though
closely
words
sound,
Jantzen contested
are
alike in
make
likely.”
the trademark in District Court
confusion
There it was held that
finding,
cross-appeal
Gropals” infringed
from
is
“Miles
“Gro Shoe”
accept.
my
though
Therefore the
which
brothers
this Court took
note
only
plaintiff’s
question
similarity might
confusing.
is whether
visual
not be
infringed.
valid trademark was
Jantzen did not commence the sale of
Having
brassieres until 1949 or
rested
find-
1950.
Since the District Court
game
non-infringement
chosen
primarily
late in the
enter the bras
phonetic
siere
field which the
dissimilarities be-
visual and
had been
1902,
themselves,
established since
and
tween the trademarks
which it
had used the trademark
the conclusions
Court need not accord
“A’Lure” since
1932,
great weight
required
reached
dinarily required.
as is or-
should be
below as
good “in
the selection
of a
“are in
trade-name or
“keep
enough
position
away
trade-mark” to
far
as the trial
to determine
possible
avoid all
probability
of confusion.” Miles
confusion.” Northam
Corporation
Shoes, Inc.,
Macy
Inc., Warren
v. H.
2
v. Universal Cos
1952,
Co., Cir.,
602,
1927,
metic
199
7
18 F.2d
S.Ct.
gave
Indeed
up
in 1953 Jantzen
the use
receiving
of “Curvallure” after
similarity
plaintiff.
test from the
of “Curvallure” to the
There
no rea-
why
plaintiff’s
son
Jantzen
as make it
have
should
resumed the
probable
prospective
use of “Curvallure”
thought
that some
customers
in 1955 unless it
reap
be confused or deceived as to
some of the
benefits of
goods.
$680,000
which
source of
While there
some
Warner’s had ex-
pended
phonetic dissimilarity,
similarity
trademark for
significant.
years.
English
products more than
Both
Both
words are the
imagination
languages
they
syn-
and French
the advertiser’s
rich in
onyms
suggestive
predilec-
power
and
by
seek
from a feminine
words
to benefit
by appearing
Up-
shown
“Plus
tion for French fashions
Bra” and
“Forever
visually
formerly
phonetically.
lift Bra”
be French
used
Jantzen.
Against
background
See La-Touraine Coffee
Lorraine
should re-
any possible
Co., Cir., 1946,
solve
doubt
Coffee
the likeli-
deception
hood
confusion
favor
denied
certiorari
plaintiff.
Learned
ap-
Hand
tomers, year’s trend of the I vote to reverse the next non-infringement grant, opportunities are with whom such disregarded, prayed plaintiff. people who the relief not to be vaguely heard old name and who seen it advertisements carry accuracy in fail to Among memory. these possibil- eminently possible, and that
ity, speculation, is if not a remote enough.” expressed Lambert The views GODWIN, S. Director In Olin Warren, supra, been re- Northam Revenue, Self, ternal William D. authority opinion enforced intervening years. Intervenor, America, United States of protection of Judicial Appellants, changes static; trademarks is changing concepts moral- of commercial BROWN, J. William Tia Wanna d/b/a brought ity. years have Recent Club, Appellee. tendency toward nounced No. 15790. vesting jealously United States Court of laws order better the protect Eighth Circuit. public. Lanham Thus Nov. passed seq., Act, 1051 et 15 U.S.C.A. § taking Congress in 1946 and Rehearing Denied Dec. July make more rule of law effective “the well-established the trade- language the re- mark owner” in the port Congressional Committees legislation. sponsoring 1946 U.S. Congressional Service, p. 1274. Code of the trend took note Goodrich Q-Tips higher Inc.
toward standards Johnson, Cir., 1953, 206 Johnson at that the de- Court held where the Tips” “Johnson’s Cotton
fendant’s infringed plaintiff’s writing: “Q-Tips,” out, pointing at the “It is worth discussion, we are of our
start tendency of where the a field of en- in the direction ‘has been
law forcing increasingly higher stand- mor- fairness or commercial ards ality tendency in trade. Torts, Restatement,
persists.’ Vol- III, page 540.”
ume higher of stand-
The enforcement precisely what the facts ards require. me As it seems
case