Guggenheim v. Cantrell & Cochrane

• Citation: 56 App. DC 100,10 F.2d 895
• Decision Date: 04 January 1926
• Docket Number: No. 4260.,4260.
• Parties: GUGGENHEIM v. CANTRELL & COCHRANE, Limited.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

56 App. DC 100, 10 F.2d 895 (1926)

GUGGENHEIM v. CANTRELL & COCHRANE, Limited.

No. 4260.

Court of Appeals of District of Columbia.

Submitted November 5, 1925.

Decided January 4, 1926.

A. L. Newmeyer, M. W. King, and E. C. Brandenburg, all of Washington, D. C., for appellant.

O. W. Jeffery, of New York City, and C. L. Sturtevant, of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.

ROBB, Associate Justice.

Appeal from a decree in the Supreme Court of the District of Columbia for the plaintiff, appellee here, in a suit to prevent infringement of the trade-mark "C & C" and unfair competition in connection with the sale of the ginger ale on which the trade-mark is used.

The record discloses that for almost half a century plaintiff's ginger ale had been widely and favorably known in the United States as "C & C," and that long prior to the entry of the defendant into the field the mark had been registered and used in the extensive advertising and selling of this ginger ale; sales amounting to 300,000 dozens of bottles per year. Witnesses for both plaintiff and defendant testified as to the excellence and popularity of this product.

The defendant formerly was a wholesale liquor dealer, first under the name of "Phœnix Liquor Company, Herbert Guggenheim, Proprietor," and later under the name of Guggenheim Distributing Company. In 1917 he began the manufacture of ginger ale, having as a partner a Mr. Gunst, who retired in a little less than two years, when defendant's brother, Sidney Guggenheim, took over the work formerly done by Mr. Gunst. On this point the defendant testified that "he personally owns the machinery in the plant that manufactures his ginger ale. He pays his brother as much salary as he needs it. It is paid to him as salary. `With my brother the business is mine.'"

At first defendant conducted his ginger ale business exclusively under the name of Christo Bottling Company. He testified that "the prominent name of his business in 1917 and 1918 was the Christo Bottling Company"; that "he began to use the G & G bottle about 1918 or 1919." From that time he manufactured and sold both Christo ginger ale and the G & G brand. He widely advertised the G & G brand, or caused it to be so advertised, but under the name of the G & G Bottling Company, and never under the name of Guggenheim & Gunst. Although all other witnesses were familiar with the C & C brand, defendant disclaimed any knowledge of it at the time he adopted G & G as his mark. He was asked why he could not sell the G & G ginger ale under the name of the Christo Bottling Company, and replied: "Well, we prefer to have a distinctive name for it."

Several employees of local hotels and restaurants testified for the defendant to the effect that there had been no confusion in the sale of the C & C and G & G brands of ginger ale in their places of business. The manager of the United States Senate restaurant, testifying for the defendant, stated that C & C was generally known as an imported ginger ale, and that waiters in his restaurant were instructed "to call for the imported ginger ale to avoid mistakes"; that he had known of C & C ginger ale for approximately 25 years and that "it is one of the very best known and has a high reputation." Another witness for the defendant testified on cross-examination in part as follows: "When people ask for defendant's product, they usually say `G & G.' I never could see any similarity between `G & G' and `C & C.' There is a similarity in the sound of the `e,' but the public gives the G & G entirely different from the C & C; rarely a mistake occurs in that." It further appeared from the testimony for the defendant that the G & G brand sells for about half the price of C & C.

Under the view we take of the case, it is unnecessary to review the evidence further. In Bourjois & Co. v. Katzel, 260 U. S. 689, 692, 43 S. Ct. 244, 245 (67 L. Ed. 464, 26 A. L. R. 567), a trade-mark infringement case, the court, after speaking of a patent monopoly, said: "The monopoly in that case is more extensive, but we see no sufficient reason for holding that the monopoly of a trade-mark, so far as it goes, is less complete. It deals with a delicate matter, that may be of great value, but that easily is destroyed, and therefore should be protected with corresponding care."

In this court, it has been repeatedly declared that there is neither legal nor moral excuse for even an approximate simulation of a well-known mark applied to goods of the same descriptive properties, and that, when an attempt to effect such simulation becomes apparent, the two marks should not be examined with a microscope to detect minute differences, but, on the contrary, should be viewed as a whole, as the general public would view them; in other words, that the points of similarity are of greater importance than the points of difference. Kaut-Reith Shoe Co. v. International Shoe Co., 45 App. D. C. 545; O. & W. Thum Co. v. Dickinson, 46 App. D. C. 306; Thomas Mfg. Co. v. Aeolian Co., 47 App. D. C. 376; Waltke v. Schafer, 49 App. D. C. 254, 263 F. 650; Coca-Cola Co. v. Chero-Cola Co., 51 App. D. C. 27, 273 F. 755.

In the case last cited we said: "To require that the line which separates marks should be well defined is not to ask too much, since the field from which a person may select a mark is almost limitless. * * * Of course, if the two marks were placed together, or if a person's attention was in some way directed to them, there would be no difficulty in apprehending the difference between them. This, however, is not the way to make the test. Ordinarily the prospective purchaser does not carry more than a faint impression of the mark he is looking for. If the article offered to him bears a mark having any resemblance to the one he is thinking of he is likely to...