Koke Co. of America v. Coca-Cola Co.

• Citation: 255 F. 894
• Decision Date: 24 February 1919
• Docket Number: 3012.
• Parties: KOKE CO. OF AMERICA et al. v. COCA-COLA CO. [1]
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

255 F. 894

KOKE CO. OF AMERICA et al. v. COCA-COLA CO. ^[1]

No. 3012.

United States Court of Appeals, Ninth Circuit.

February 24, 1919

Richard E. Sloan, of Phoenix, Ariz., and Austin B. Littleton, of Chattanooga, Tenn. (Littleton, Littleton & Littleton, of Chattanooga, Tenn., of counsel), for appellants.

William K. White, of San Francisco, Cal., Harold Hirsch, of Atlanta Ga., Joseph E. Morrison, of Phoenix, Ariz., and Edward S Rogers and Frank F. Reed, both of Chicago., Ill., for appellee.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

ROSS Circuit Judge.

Our conclusion in this case, after a careful examination of it may be very briefly stated. The suit was brought to obtain an injunction, preliminary and perpetual, an accounting for profits, and for the recovery of damages against the defendants thereto, upon the ground of their alleged joint and several infringement of the complainant's trade-mark 'Coca-Cola,' and for unfair competition on the part of the defendants. After long preceding use of it, the trade-mark was registered in the United States Patent Office on January 3, 1893, under the act of Congress of March 3, 1881, and was also registered under the subsequent act of Congress of February 20, 1905, entitled 'An act to authorize the registration of trade-marks used in commerce with foreign nations, among the several states of the United States, and with the Indian tribes, and to protect the same. ' A very large amount of testimony was taken in the case, from which the court below found as a fact that the preparation manufactured and sold by the defendants to the suit was in imitation of that of the complainant, and that the name under which it was so manufactured and sold-- 'Koke'-- was selected for the purpose of reaping the benefit of the reputation and advertising of the complainant, and because it would permit the defendants to better dispose of their product as and for Coca-Cola, especially in view of the fact that the label of the complainant was copied and imitated, and the barrels in which defendants' products were shipped were colored as nearly like those of complainant as possible.

Upon the record we would not be justified in holding that the trial court reached the wrong conclusion in that respect, and if that were the only point in the case would readily affirm the interlocutory decree appealed from. But it is the well-established law, as held by the Supreme Court in the case of Worden v. California Fig Syrup Co., 187 U.S 516, 528, 23 Sup.Ct. 161, 164 (47 L.Ed. 282) that 'when the owner of a trade-mark applies for an injunction to restrain the defendant from injuring his property by making false representations to the public, it is essential that the plaintiff should not in his trade-mark or in his advertisements and business, be himself guilty of any false or misleading representations; that if the plaintiff makes any material false statement in...