224 F.2d 840 (5th Cir. 1955), 15264, Squirrel Brand Co. v. Barnard Nut Co.

Docket Nº:15264.
Citation:224 F.2d 840, 106 U.S.P.Q. 296
Party Name:SQUIRREL BRAND COMPANY, Appellant, v. BARNARD NUT CO., Inc., Appellee.
Case Date:August 09, 1955
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 840

224 F.2d 840 (5th Cir. 1955)

106 U.S.P.Q. 296

SQUIRREL BRAND COMPANY, Appellant,

v.

BARNARD NUT CO., Inc., Appellee.

No. 15264.

United States Court of Appeals, Fifth Circuit.

August 9, 1955

Rehearing Denied Oct. 13, 1955.

Page 841

Graham C. Miller, Miami, Fla., Miller, Pearson & Miller, Miami, Fla., for appellee. Armand J. Brissette, Jr., New York City, of counsel.

Before RIVES and CAMERON, Circuit Judges, and DAWKINS, District Judge.

CAMERON, Circuit Judge.

This appeal presents the question whether the District Court was clearly erroneous in its finding that defendant, in using the picture of a squirrel on its labels and advertising, did not infringe plaintiff's registered trademark and did not unfairly compete with plaintiff. Squirrel Brand Company, appellant, as plaintiff below, sued Barnard Nut Company, Inc., appellee, defendant below, demanding injunctive relief and damages for claimed infringement of its 'Squirrel Brand' Trademark and for unfair competition in connection with the manufacture and sale in interstate commerce of nuts, nut meats and candies. The action was based upon the claim that plaintiff had the sole right to use the figure of a squirrel along with the word 'Squirrel' and its own trade name on nuts, nut products and candies, and that defendant infringed its registered trademark by the use of the similar figure of a squirrel as a trademark on its competing products.

The District Court entered its Findings of Fact and Conclusions of Law, 1

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finding that plaintiff was the owner of trademark registrations bearing the picture of a squirrel and the words 'Squirrel Brand'; and that defendant likewise used the picture of a squirrel along with its name and catch phrase 'Barnard's Nuttee Foods'; but that there would be no likelihood of confusion or mistake as to the source or origin of the goods produced by the respective parties; and that there was no infringement or unfair competition. The Court further found that defendant had advertised and sold its products in Florida prior to plaintiff's beginning business there. From the judgment entered for the defendant upon those findings, plaintiff appeals.

Appellant claims that the findings of the court below are clearly erroneous and that the evidence plainly shows that the

Page 843

use by appellee of the figure of a squirrel is an undoubted infringement of appellant's trademark giving rise to the likelihood of confusion and mistake as to the source or origin of the respective products; that indisputable documentary evidence required a finding as against purely oral testimony that appellee was not using its trademark in Florida prior to the beginning of appellant's business there. Appellant further refutes vigorously appellee's claim that the use of the figure of the squirrel was merely descriptive and not the proper subject of trademark registration.

A clear-cut issue of fact was developed in the court below with respect to each of the issues framed by the contentions of the parties. The case was tried by the same experienced judge who tried Pure Foods v. Minute Maid Corp., infra, so much relied upon by appellant; the hearing was a long one, both sides introducing many depositions and many witnesses to testify orally, and the exhibits totaled more than one hundred. At the conclusion of the hearing the court below entered its findings and conclusions, as set out above, and these must stand unless we can say that they were clearly erroneous. That we are not warranted in doing under the evidence before us. 2

We have examined the documentary evidence, the testimony of the witnesses who gave their depositions and have compared and contrasted the oral testimony of the witnesses, ascribing to each kind of evidence the weight and merit according to standards clearly recognized in this court, 3 and find that there is substantial credible evidence to support the court's finding in each instance, including the prior use of the squirrel image by appellee.

The field of trademark infringement and unfair competition has furnished a large body of litigation and the cases are almost without number. No good purpose will be served by trying to analyze them and to relate this case to those thought to bear a close resemblance to it. Both parties have done this in their briefs, and we have read the cases and have found none which is determinative of the questions here. Appellant cites many cases where injunctions have been granted and where findings have been made in favor of litigants claiming infringement. The trouble is that the court below found the facts here in favor of the appellee and against infringement. The court below did not render a written opinion, but it tried the case fairly and expertly and reached conclusions which we find to be quite consonant with the evidence before it.

It may be that the court below found it as difficult as we have to visualize as...

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