253 F. 914 (7th Cir. 1918), 2498, L.P. Larson, Jr., Co. v. Wm. Wrigley, Jr., Co.

Docket Nº:2498, 2500.
Citation:253 F. 914
Party Name:L. P. LARSON, JR., CO. v. WM. WRIGLEY, JR., CO. v. L. P. LARSON, JR., CO.
Case Date:July 30, 1918
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 914

253 F. 914 (7th Cir. 1918)






Nos. 2498, 2500.

United States Court of Appeals, Seventh Circuit.

July 30, 1918

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Charles H. Aldrich, Frank F. Reed, and Edward S. Rogers, all of Chicago, Ill., for L. P. Larson, Jr., Co.

Before BAKER and ALSCHULER, Circuit Judges, and LANDIS, District judge.

BAKER, Circuit Judge.

In No. 2500 Wrigley Company appeals from the final dismissal of its bill against Larson Company for alleged unfair competition and infringement of trade-mark.

'Spearmint' was counted on as a trade-mark and was charged to be infringed by 'Peptomint.' First. 'Spearmint' is a common noun, denoting flavor, and is therefore not susceptible of appropriation as a trade-mark. Second. 'Peptomint' is so different in appearance and sound that there would be no infringement, even if 'Spearmint' were a proper trade-mark.

Respecting unfair competition, an inspection of the packages discloses some marked dissimilarities. On the display side of the one 'Wrigley's Spearmint Pepsin Gum' are the prominent words; on the other, 'L.P.L. Peptomint Gum.' 'Spearmint,' specially emphasized, is printed on the shaft of a spear, lying horizontally along the middle of the label. 'Peptomint,' specially emphasized, is printed on a straight-line banner, running obliquely from lower left to upper right, and laid upon a circle in the middle of the label. These differences, when the labels are placed side by side, are very striking. But there are also striking similarities. Both packages severally contain 5 sticks of gum, done up in pink wrappers, which protrude at each end some distance beyond the label wrappers. Both labels are done on white paper with red and green printers' inks. Spear shaft and head are green, and thereon 'Spearmint' shows in large white letters. Larson Company's banner is green, and thereon 'Peptomint' shows in large

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white letters. 'Wrigley's' above the spear and 'Pepsin Gum' below are printed in red. Larson's circle is red. In segments above and below the banner 'L.P.L.' and 'Gum' appear in white on the red background. Both labels bear sprigs of mint in green.

If the case were to be disposed of by the foregoing comparison, the finding might well be that the similarities so overbear the differences that the casual purchaser might be misled by the common color and printing scheme; and such was the view of the learned District Judge in granting a pendente lite injunction on the sworn bill and exhibits.

But at the final hearing other facts appeared, which may be briefly summarized as follows: In gum making before Wrigley's time it was common practice to form sticks of the size and shape now used by Wrigley and Larson; to wrap the sticks in pink paper; to put 5 sticks in a package; to put 20 packages in a box; to tie each package of 5 pink sticks with a counterband of...

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