L.P. Larson, Jr., Co. v. Wm. Wrigley, Jr., Co.

Citation253 F. 914
Decision Date30 July 1918
Docket Number2500.,2498
PartiesL. P. LARSON, JR., CO. v. WM. WRIGLEY, JR., CO. v. L. P. LARSON, JR., CO.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

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 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 white paper; to use red and green printers' inks on the white counterband; to display the maker's name and 'Gum' or 'Pepsin Gum' in red letters; and, if the flavor was of the mint order, to print the name denoting flavor in white on a green design or in green on a white design. And on the package of this general style Wrigley was not the first to apply 'Spearmint' as a display word of special emphasis. That had been done by Pulver years before Wrigley came on the scene. So there was nothing that Wrigley did not take from others, except his own name and the spear as the design on which to spread the word 'Spearmint.'

Wrigley of course, knew these facts, and also the inside story of his suit against Pulver. According to the final decree in that case, Wrigley, not Pulver, was the originator of the 'Spearmint' package. But the decree was not entered until Wrigley owned both sides of the lawsuit. He gave Pulver $100,000 in cash and $150,000 in notes running one to five years. If Pulver should fail to keep still, there might be trouble in collecting the notes remaining unpaid. It was Larson's persistent digging that unearthed this hidden story.

Wrigley's oppression of his opponent and his attempt to deceive the court were ample grounds for refusing him relief in equity and in the strict law, when Wrigley is limited, as he must be, to his own name and the spear design for displaying 'Spearmint,' Larson is not liable for using his own initials and the oblique banner across the circle for displaying 'Peptomint.'

In No. 2498, the record came here first; but it presents a later controversy. Larson, while under the pendente lite injunction against his 'Peptomint' package, brought out his 'Wintermint' brand. Wrigley sued him as an infringer of 'Wrigley's Doublemint' package. On final hearing Wrigley's bill was dismissed for want of equity, and Wrigley has acquiesced.

Wrigley's bill described the packages and averred that confusion had arisen and was bound to continue. This was fortified by the opinion testimony of Wrigley and another officer of his company. Larson, in his answer and counterclaim, fully accepted Wrigley's position as to similarity and confusion, denied that 'Wrigley's Doublemint' was the elder, and averred that Wrigley had deliberately brought out 'Doublemint- ' to undermine Larson's established and growing trade in 'Wintermint.' The evidence proves with certainty that 'Wintermint' was seven months older than 'Doublemint.' A reasonably clear inference from facts in the record is that Wrigley was acquainted with the 'Wintermint' package before adopting his 'Doublemint' package.

But, in support of the counterclaim, no proof was made of actual confusion. Counsel, however, contend that an inference to that effect may be drawn from Larson's testimony that after 'Doublemint' appeared his sales of 'Wintermint' materially decreased. True, but a falling off in business may result from fair as well as from unfair competition.

Insistence comes to be centered on the proposition that the trial court was not at liberty to determine the question of actual or probable confusion from a comparison of the packages and from the lack of direct testimony, but was bound to take that issue as settled by Wrigley's averments and admissions in court; and counsel cite many cases as supportive of their contention. [1]

Undoubtedly a litigant has no cause for complaint if the court accepts his solemn and sworn admissions in pleadings and testimony as true. But we must reject the contention that his adversary has the right to compel the court to do so. Otherwise a court could be forced by parties to decide moot, feigned, and collusive cases, or a chancellor might be made to proceed with an equitable accounting between partners who had stolen...

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