306 F.2d 433 (5th Cir. 1962), 19007, Chemical Corp. of America v. Anheuser-Busch, Inc.

Docket Nº:19007.
Citation:306 F.2d 433, 134 U.S.P.Q. 524
Case Date:August 15, 1962
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 433

306 F.2d 433 (5th Cir. 1962)

134 U.S.P.Q. 524




No. 19007.

United States Court of Appeals, Fifth Circuit.

Aug. 15, 1962

Rehearing Denied Nov. 19, 1962.

Page 434

Julius F. Parker, Caldwell, Parker, Foster, Madigan & Oven, Tallahassee, Fla., for appellant.

Roy A. Lieder, St. Louis, Mo., J. Lewis Hall, Tallahassee, Fla., Owen J. Ooms, Ooms, Welsh & Bradway, Chicago Ill., Gravely, Lieder & Woodruff, St. Louis Mo., for plaintiff-appellee, Hall, Hartwell & Douglass, Tallahassee, Fla., of counsel.

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

TUTTLE, Chief Judge.

This is a suit brought by the appellee, Anheuser-Busch, Incorporated, the owner of the slogan, 'Where there's life . . . there's Bud,' used in the sale of Budweiser beer, seeking to enjoin, as an infringement, a slogan subsequently adopted and used by the defendant-appellant in the sale of a combined floor wax and insecticide, 'Where there's life . . . there's bugs.' After a full trial on the merits, the trial judge granted a permanent injunction against the use of the 'Bugs' slogan by the appellant.

The record on appeal fully warrants findings by the trial court of the following facts quoted from the court's 'Findings of Fact:'

'Plaintiff is engaged in the manufacture and sale of various food and beverage products. The most notable of its products is Budweiser beer. This beer is also advertised and marketed under the name of 'Bud' as well as Budweiser beer. Both of these names have been registered as trademarks in accordance with the provisions of the Lanham Act, 15 U.S.C. Section 1051, et seq. In October, 1960, after this suit was commenced, plaintiff registered 'Where there's life . . . there's Bud' and 'Where there's life . . . there's Budweiser' on the supplemental register under the provisions of the Lanham Act.

'In 1933 plaintiff began using the slogan 'Where there's life . . . there's Budweiser' in its advertising. From 1933 to 1956 plaintiff used the slogan infrequently. In 1956 plaintiff undertook sales campaigns employing undertook sales campaigns employing 'Where there's life . . . there's Bud'. Plaintiff, having found that the slogans were effective in successfully marketing its product, spent in excess of $40,000,000.00 in advertising which contained the two slogans. Plaintiff advertised Budweiser beer with the slogans and trademarks on radio stations, television, national billboards, newspapers and national circulated magazines. The evidence shows that plaintiff's sales have increased since 1956 and a great portion of the increase is attributable to the success of plaintiff's advertising.

'The slogans were not affixed directly on the bottles or upon the beer cans, nor upon the labels on the bottles and cans. Some of the cartons and containers used in packaging and for carrying plaintiff's beer bore one or more of the slogans. These cartons and containers cost plaintiff approximately $9,000,000.00.

'In an effort to determine the effectiveness of the advertising program, plaintiff employed advertising surveys to determine whether the public was acquainted with the plaintiff's slogans, and whether the public associated the slogans with plaintiff's product. The results of the surveys showed that a substantial portion of the public was not only acquainted and familiar with the slogans but also associated the slogans with Budweiser beer.

Page 435

'The court finds that as a result of the wide dissemination of advertising employing the slogans, for the long period which plaintiff has used the slogans in advertising its product, that the public did, in fact, know the slogans, associated the slogans with the products, and associated plaintiff as the source of the advertising.

'The court also finds that the slogans which were placed upon the containers and cartons were sufficient to identify the product.

'Defendant is engaged in the manufacture and sale of a floor wax which contains an insecticide. The product is sold under the name of Freewax. It has heretofore been marketed primarily in the Southern part of the United States. Defendant had been using the slogan 'Life on Floors . . . Death on Bugs' to advertise its product.

'At the time that the idea to use 'Where there's life . . . there's Bugs' arose, defendant knew that plaintiff was using the slogans 'Where there's life . . . there's Bud' and 'Where there's life . . . there's Budweiser'.

'On July 7, 1960, defendant, after warnings by plaintiff not to use the slogan, advertised Freewax on television in the Tallahassee, Florida--Thomasville, Georgia area.

'The court finds from listening to the tapes, and from watching the film strips, that defendant's use of the slogan was confusingly similar to...

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