226 F.2d 700 (5th Cir. 1955), 15472, Webb's City, Inc. v. Bell Bakeries

Docket Nº:15472.
Citation:226 F.2d 700, 107 U.S.P.Q. 233
Party Name:WEBB'S CITY, Incorporated, Appellant, v. BELL BANKERIES, Inc., Appellee.
Case Date:November 09, 1955
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 700

226 F.2d 700 (5th Cir. 1955)

107 U.S.P.Q. 233

WEBB'S CITY, Incorporated, Appellant,

v.

BELL BANKERIES, Inc., Appellee.

No. 15472.

United States Court of Appeals, Fifth Circuit.

Nov. 9, 1955

Baya M. Harrison, Jr., St. Petersburg, Fla., Mann, Harrison, Stone, Roney & Mann, St. Petersburg, Fla., of counsel, for appellee.

Page 701

Before HUTCHESON, Chief Judge, and TUTTLE and BROWN, Circuit Judges.

TUTTLE, Circuit Judge.

This appeal presents the question of whether, under Florida law, one whose unregistered trade name has acquired a distinctive meaning in the minds of the buying public is entitled to the exclusive use of that name, or whether he has a cause of action only where a competitor so names, packages, or promotes his own product as to create a substantial likelihood of confusion between the two products in the mind of the ordinary purchaser.

For fourteen years prior to the bringing of this action, Webb's City, Inc., a large department store in St. Petersburg, Florida, sold its own bread to the public, under the trade name 'Dandy.' Although the markings of the wrapper were charged from time to time, the trade name remained constant. Webb's City spent thousands of dollars yearly in advertising its product, both over the radio and, at least three times weekly, in the newspapers. As a result of these promotional activities-- the trial court found-- the name 'Dandy, ' in reference to bread sold in the plaintiff's store, acquired a distinctive, secondary meaning in the minds of the buying public of St. Petersburg.

On October 18, 1953, the defendant for the first time offered 'Dandee' bread for sale in St. Petersburg, accompanying its introduction with advertising and other promotional measures. For several months prior to this time, the defendant had sold 'Dandee' bread in North Carolina, Michigan and Illinois. On October 26, 1953, Webb's City brought suit in Florida state court for an injunction, alleging unfair competition, in the selling of 'Dandee' bread in St. Petersburg. Thereafter the defendant removed the case to the District Court for the Southern District of Florida, on the ground of diversity. The case was there heard without a jury, and the trial court made findings of fact and conclusions of law, the former being substantially accepted and the latter challenged on this appeal.

The trial court found that 'Dandy' bread is sold exclusively in the plaintiff's department store, while 'Dandee' bread is not offered for sale there. It also found that the wrappers are substantially different. 'Dandee' bread has thus far been packaged in a wrapper which has a yellow background...

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