245 F. 289 | 8th Cir. | 1917
Lead Opinion
This suit was brought to restrain unfair competition in business and to protect what was claimed to be a trade-mark and a trade-name. The appellant and its predecessors in in
The Viavi Company made and sold medicines it called “Viavi Capsules,” “Viavi Suppositories,” “Viavi Cerate,” “Viavi Tablettes,” “Viavi Liquid,” “Viavi Laxative,” “Viavi Pencils,” and “Viavi Royal.” The Vimedia Company has made and sold medicines it called “Vimedia Ca-psules,” “Vimedia Suppositories,” “Vimedia Cerate,” “Vimedia Tablets,” “Vimedia Liquid,” “Vimedia Laxative,” “Vimedia Pencils,” and “Vimedia Sovereign.”
There is no presuasive testimony that purchasers have actually been deceived by any confusion of the goods. Notwithstanding the resemblances of colors and forms, the difference in other respects in the dress of the goods is such as to persuade that no one of ordinary intelligence will be deceived. Coats v. Merrick Thread Co., 149 U. S. 562, 13 Sup. Ct. 966, 37, L. Ed. 847; Singer Mfg. Co. v. June Mfg. Co., 163 U. S. 169, 16 Sup. Ct. 1002, 41 L. Ed. 118; Kann v. Diamond Steel Co., 89 Fed. 706, 32 C. C. A. 324; P. Lorillard Co. v. Peper, 86 Fed. 956, 30 C. C. A. 496; Proctor & Gamble Co. v. Globe Refining Co., 92 Fed. 357, 34 C. C. A. 405; S. R. Feil Co. v. John F. Robbins Co., 220 Fed. 650, 136 C. C. A. 258; Wolf Bros. & Co. v. Hamilton-Brown Shoe Co., 206 Fed. 611, 124 C. C. A. 409.
We think the decree of the lower court is right and should be affirmed.
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Dissenting Opinion
(dissenting). The appellees had been closely associated and were intimately acquainted with the entire business of appellant in all its methods, phases, and results. They started out to compete in the same field. There is no question in my mind of their