Tampa Cigar Company v. John Walker & Sons

Decision Date13 May 1955
Docket NumberNo. 15342.,15342.
PartiesTAMPA CIGAR COMPANY, Inc., Appellant, v. JOHN WALKER & SONS, Limited, Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

E. O. Palermo, Tampa, Fla., for appellant.

Ellis W. Leavenworth, New York City, Harry B. Terrell, Whitaker, Whitaker & Terrell, Tampa, Fla., for appellee. Leslie D. Taggart, Watson Leavenworth Kelton & Taggart, New York City, of counsel.

Before RIVES, TUTTLE and CAMERON, Circuit Judges.

CAMERON, Circuit Judge.

The pattern of this decision is set by what we wrote when the case was before us on the former appeal,1 and what the district court did upon remand when he tried the case on the merits. We reversed a judgment which sustained a motion to dismiss and held that the complaint stated good grounds for relief. Upon the trial, the district court found that the evidence supported the averments of the complaint, 124 F.Supp. 254. It remains, therefore, but to affirm unless we can say that its findings were clearly erroneous.2

The former opinion sufficiently sets out the facts and they will not be repeated here except in bare outline. Appellee, the whiskey-maker, sought by this action to enjoin Appellant, the cigar-maker, from using its registered trademark, Johnnie Walker, or any colorable imitation thereof.3

Based upon the evidence, consisting of stipulations of the facts and many exhibits, the district court found that Appellee and its predecessors had used the trademark Johnnie Walker since 1880, had established it as a famous trademark by extensive advertisement and had built up a favorable and widely-recognized reputation for its Scotch whiskey. The court further found that Appellant had used the trademark Johnnie Walker in the sale of its cigars, and that the manner of such use constituted a colorable imitation of the character used by Appellee in its trademark, and that such use was accompanied by the intention of taking advantage of the fame and reputation of Johnnie Walker, the whiskey character. It further found that such use was likely to cause confusion and to create the erroneous impression that the makers of the whiskey also made the cigars.

The court concluded that the cigarmaker had infringed the valid trademark of the whiskey-maker and should be stopped and entered judgment permanently enjoining the use of the trademark by the cigar-maker. As stated, we are asked to reverse that judgment by holding that the findings and conclusions of the district court are clearly erroneous.

That we decline to do. We have considered the facts as stipulated by the parties and carefully examined the exhibits which are before us, and think the court below was amply justified in its findings, conclusions and judgment.

Our attention is called to a proceeding pending in the United States Patent Office4 wherein Appellee sought unsuccessfully to prevent the registration of the trademark Johnnie Walker in...

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16 cases
  • ALFRED DUNHILL, ETC. v. Kasser Dist. Prod. Corp.
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • October 26, 1972
    ...this regard are supported by several cases. In John Walker & Sons, Ltd. v. Tampa Cigar Co., 124 F.Supp. 254 (S.D.Fla.1954), aff'd, 222 F.2d 460 (5th Cir. 1955), the court "17. Whiskey and cigars are closely related in distribution and use. Hotels, restaurants and bars supply cigars as well ......
  • Bell v. Starbucks U.S. Brands Corp., Civ.A. G-04-169.
    • United States
    • U.S. District Court — Southern District of Texas
    • August 19, 2005
    ...determine the similarity of the products. John Walker & Sons, Ltd., v. Tampa Cigar Co., 124 F.Supp. 254, 256 (S.D.Fla.1954), aff'd 222 F.2d 460 (5th Cir.1955). Plaintiff's and Defendants' products do not currently appear in the same distribution channels, nor do people purchase beer and cof......
  • Squirrel Brand Company v. Barnard Nut Co.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • October 13, 1955
    ...Maid Corp., 5 Cir., 1954, 214 F.2d 792; John Walker & Sons v. Tampa Cigar Co., 5 Cir., 1952, 197 F.2d 72; Tampa Cigar Co. v. John Walker & Sons, 5 Cir., 1955, 222 F.2d 460; Bulova Watch Co. v. Steele, 5 Cir., 1952, 194 F.2d 12 Ib. and Chappell v. Goltsman, 5 Cir., 1952, 197 F.2d 837. ...
  • Haig & Haig, Limited v. Maradel Products, Inc.
    • United States
    • U.S. District Court — Southern District of New York
    • January 25, 1966
    ...far-reaching protection upon a showing of disinterested factual evidence — usually after trial. See e. g. Tampa Cigar Co. v. John Walker & Sons, Ltd., 222 F.2d 460 (5th Cir. 1955) (whisky v. cigars); Triangle Publications v. Rohrlich, 167 F.2d 969 (2d Cir. 1948) (Seventeen magazine v. dress......
  • Request a trial to view additional results
1 books & journal articles
  • Intellectual Property - Michael W. Rafter
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 51-4, June 2000
    • Invalid date
    ...Beef/Eater Restaurants, Inc. v. James Burrough, Ltd., 398 F.2d 637, 639 (5th Cir. 1968). 125. Tampa Cigar Co. v. John Walker & Sons, Ltd., 222 F.2d 460, 461 (5th Cir. 1955). 126. Greyhound Corp. v. Goberna, 128 F.2d 806, 807 (5th Cir. 1942). 127. Professional Golfer's Ass'n v. Banker's Life......

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