253 F.2d 269 (7th Cir. 1958), 11514, A. E. Staley Mfg. Co. v. Staley Mill. Co.

Docket Nº:11514.
Citation:253 F.2d 269, 116 U.S.P.Q. 546
Party Name:A. E. STALEY MANUFACTURING COMPANY, Plaintiff-Appellee, v. STALEY MILLING COMPANY, Defendant-Appellant.
Case Date:March 13, 1958
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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253 F.2d 269 (7th Cir. 1958)

116 U.S.P.Q. 546



STALEY MILLING COMPANY, Defendant-Appellant.

No. 11514.

United States Court of Appeals, Seventh Circuit.

March 13, 1958

Thomas W. Samuels, Decatur, Ill., William T. Woodson, Chicago, Ill., Le Forgee, Samuels & Miller, Decatur, Ill., Woodson, Pattishall & Garner, Chicago, Ill., Carl R. Miller, Decatur, Ill., of counsel, for plaintiff-appellee.


FINNEGAN, Circuit Judge.

A factual controversy is the chief factor in this appeal resting upon a prolix record. After carefully canvassing that five volume transcript of evidence containing roughly 3693 printed

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pages encompassing testimony of 122 witnesses, 192 depositions and a welter of exhibits, it is our opinion that the findings of fact, vigorously assailed by defendant, and entered below, must be left undisturbed. This is simply not an instance of where some critical finding, or findings, of fact are clearly erroneous. United States v. United States v. Oregon Co., 1948, 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746; United States v. Oregon State Medical Soc., 1952, 343 U.S. 326, 339, 72 S.Ct. 690, 96 L.Ed. 978. Defendant's minute dissection of various findings of fact in the hope of exhibiting deficiencies which would persuade us that the judgment below was the result of the trial judge's unwarranted and unsound diagnosis of the evidence is unavailing when measured by the record and Rule 52, Federal Rules Civil Procedure, 28 U.S.C.: 'In all actions tried upon the facts without a jury * * * the court shall find the facts specially and state separately its conclusions of law thereon * * *. Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. * * * If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions of law appear therein. * * *'

What Judge Lindley, speaking for the panel which heard and decided Benrose Fabrics Corp. v. Rosenstein, 7 Cir., 1950, 183 F.2d 355, 358 cogently summarized has an acute application in the case now before us:

'From the foregoing facts and certain others, some controverted and some undisputed, with which it is unnecessary to belabor this opinion, it seems clear to us that the evidence was of such character and weight as to support the findings and conclusions. We can conceive of no right upon our part to set them aside, for we cannot say, as a matter of law, that they are clearly erroneous. True, with other courts, we have announced that if findings rest upon documents, depositions or upon mere comparison of names, if credibility of witnesses is not involved, or if the trial tribunal has no opportunity to observe the witnesses, a court of review is as well qualified to pass upon the weight of evidence as is the trial court, but where, as here, conflicting stories are told by witnesses whose credibility is at stake, we may not supersede the determination of the finder of fact and substitute our judgment for his. It is not a question of whether we would have made the same finding; it is rather a question of whether the evidence substantially and adequately snpports it.'

Our court, in Norwich Union Indemnity Co. v. Haas, 7 Cir., 1950, 179 F.2d 827, 832 laid down these general principles also relevant here:

'We have considered plaintiff's contention that the findings of the District Court are insufficient. It must be remembered that Rule 52 of Federal Rules of Civil Procedure does not require the trial court to make findings on all the facts presented or to make detailed evidentiary findings; if the findings are sufficient to support the ultimate conclusion of the court they are sufficient. * * *'

The Tenth Circuit expressed a similar view in Trentman v. City and County of Denver, Colo., 1956, 236 F.2d 951, 953. We hold that the findings before us in this appeal sufficiently disclose the factual basis for the trial judge's ultimate conclusions. The record contains substantial support for those findings of fact. O'Brien v. O'Brien, 7 Cir., 1953, 202 F.2d 254, 255, Woods v. Oak Park Chateau Corporation, 7 Cir., 1950, 179 F.2d 611. A mature system of law manifests recognition that absolute certainty concerning questions of fact cannot repeatedly be attained in trials of this sort. When practical men investigate the question whether purchasers of trade-marked articles are likely to be confused or mistaken as to the source of

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origin of such goods, the resulting answer is unlikely to be any more than a probability. To be sure the probabilities can be improved, as we point up elsewhere in our opinion. But on the evidence before us the trial judge could only arrive at his conclusions through inductive reasoning; that is by examining the testimonial instances of customer confusion.

Among the 'contested issues' stated in defendant's opening brief is this key one and, its derivative aspects. '1. Whether defendant has infringed trade-mark rights of plaintiff in the surname 'Staley.' A. Whether plaintiff has acquired the exclusive right to use the surname 'Staley' as a trademark for all human foods and all animal feeds prior to defendant's adoption and use of the surname 'Staley' as its trademark for certain food and feed products. B. Whether defendant has used the surname 'Staley' unfairly and in a manner calculated to pass its products as products of plaintiff.' Of course, those quoted lines constitute defendnat's version of a major question in the case, and may be fairly assumed to be the critical issue in support of which plaintiff had the burden of producing evidence.

After two months of trial in the district court the following findings of fact, among others, were entered:

8. Neither J. H. Staley nor any member of his family had ever made or sold any product under the trade-mark Staley or Staley's prior to the date of defendant's incorporation in 1925.

9. Plaintiff's business is the processing of corn and soybeans and the manufacture and sale of a variety of products derived therefrom, including food and animal feeds, and the sale of whole grains.

10. In 1912, plaintiff began the manufacture, advertising and sale of good and feeds under the trade-mark Staley's and has continuously manufactured, advertised and sold its principal foods and feeds under the trade-mark Staley's since that date.

11. The bags and containers in which plaintiff's feeds have been sold have always had printed thereon the trade-mark Staley's or, if sold in plain bags, have had tags attached thereto bearing said trade-mark.

12. Plaintiff's trade-mark Staley's is generally displayed with a tail on the letter 'Y' extending under the other letters of the name, commonly called a paraph. Plaintiff's first use of the paraph was prior to 1921. Plaintiff's first registration of the trade-mark Staley's in 1921 contained the paraph.

13. Since 1912, plaintiff has also used as a trade-mark on its feeds a target or disk design. This trade-mark was registered by plaintiff in 1926.

14. In 1922, plaintiff began processing soybeans and began the production and sale of the products derived therefrom, including foods for human consumption and animal feeds.

15. In 1925, plaintiff began the sale of whole grains, including corn, wheat and oats, under the trade-mark Staley's. Some of these whole grains were sold for livestock feeding.

16. Plaintiff's use of Staley's as a trade-mark for food for human consumption and for animal feeds was long prior to defendant's use of Staley as a trade-mark.

17. When defendant was founded in 1925, under the corporate name Staley Milling Company, plaintiff was using Staley's as a trade-mark for foods and feeds on a national scale.

18. Plaintiff has obtained and now owns fifteen registrations of the trade-mark Staley's in various combinations in the United States Patent Office for its various products including food for human consumption and animal feeds, the first of which was obtained in 1921.

19. Plaintiff has obtained seventeen registrations in the United States Patent Office of trade-marks which include the syllable 'Sta', one of which is Stavite, the first of which was obtained in 1926.

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20. Defendant has never used any trade-marks other then Staley which included the syllable 'Sta'.

21. Defendant, in 1937, registered a mark containing the words 'Staley's Record', a part of which it abandoned in 1946.

22. Defendant's first trade-mark for feeds was Four Bells, which it registered in the United States Patent Office in 1925.

23. In addition to the mark 'Staleys' Defendant uses various trade-marks for foods and feeds, among which are Four Bells, Pig Mama, Pro-Lass, Hog Uncles, Shur Gain, Dr. Pig, Royal Scot, Blessed Event, Atoms, Drykow, and Alpurpus.

24. From 1912 through 1950, (the last full calendar year before this suit was filed) plaintiff sold its feeds under the trade-mark, Staley's.

25. From 1912 through 1950, plaintiff's sales of products manufactured from corn and soybean were in excess of 34, 000, 000, 000 pounds, having a value in excess of $1, 400, 000, 000.

26. From 1912 through 1950, plaintiff's feed sales amounted to more than 17, 400, 000, 000 pounds, having a value in excess of $330, 000, 000.

27. From 1912 through 1950, plaintiff sold in excess of 1, 500, 000, 000 pounds of whole grains.

28. From 1924 through 1950, plaintiff expended in excess of $10, 400, 000 in advertising its various products, including feeds, most of...

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