Dixiepig Corporation v. Pig Stand Co.

• Decision Date: 08 July 1930
• Docket Number: No. 10780.,10780.
• Citation: 31 S.W.2d 325
• Parties: DIXIEPIG CORPORATION et al. v. PIG STAND CO.
• Court: Texas Court of Appeals

31 S.W.2d 325

DIXIEPIG CORPORATION et al. v. PIG STAND CO.

No. 10780.

Court of Civil Appeals of Texas. Dallas.

July 8, 1930.

Rehearing Denied October 4, 1930.

Appeal from District Court, Dallas County; Claude M. McCallum, Judge.

Suit by the Pig Stand Company against the Dixiepig Corporation and another. Judgment for plaintiff, and defendants appeal.

Reversed, and rendered.

D. A. Frank, W. B. Hamilton, and Louis Wilson, all of Dallas, for appellants.

Wm. M. Cramer, of Dallas, for appellee.

VAUGHAN, J.

Appellee, Pig Stand Company, a private corporation, instituted proceedings in the court below against appellants, Dixiepig Corporation, a private corporation, and Louis Wilson, for an injunction restraining appellants from practicing alleged unfair trade competition in the use of certain advertising in connection with the business of Dixiepig Corporation, and for damages. Appellants answered by general demurrer, general denial, and certain special pleas, which will be developed in the discussion of the propositions upon which this appeal is predicated. On March 29, 1930, hearing was had and judgment rendered on appellee's application for a temporary injunction, enjoining and restraining appellants, until a hearing could be had upon the merits of said suit, from using the terms "Dixiepig Sandwich" and "Dixiepig Stand," or any other equivalent thereto, and from using appellee's corporate name, Pig Stand Company, or its equivalent, Dixiepig Corporation, in the advertising of appellant's business, or in connection with the sale or marketing of appellants' sandwiches, said injunction to apply to any concern or association or business owned, controlled, or participated in by the appellants. The trial court, as basis for said judgment, found that the trade-marks of appellee and appellant "are conflicting; that the purchasers of the goods, wares, merchandise, sandwiches, etc., of the kind sold by the parties, were misled by the trade-mark of defendants and thought they were purchasing the goods of plaintiff; that the defendants and their predecessors in interest adopted said trade-mark for the purpose of palming off his goods as those of plaintiff to the damage of plaintiff."

Appellee's trade-mark is represented by a picture of a pig in a natural walking position, head down, with the words "Pig Sandwich" extending from shoulder to hind leg, midway of the body of the hog; and signs at appellee's stands, in addition to the above trade-mark, read as follows: "Sandwich at the Pig Stands." Appellee sold a variety of sandwiches—including pork, beef, hamburger, pimento cheese, and ham—which were wrapped in separate paper, bearing appellee's "Pig Stand" trade-mark, before being served. Appellee's trade-mark was registered in the United States Patent Office November 5, 1924.

Appellants' trade-mark was duly registered in the United States Patent Office July 21, 1925, and consists of a picture of a pig standing erect with a checked cap on head, a white apron fastened around neck and tied just below the shoulders, the apron extending to hoofs, a checked tie around neck, pig holding a knife as a waiter in front hoofs, with a sandwich thereon, and the word "Dixiepig" immediately under the "waiter," and the trade-mark representing the pig as a waiter. On paper napkins used by appellants the above trade-mark is reproduced with the words "Ask for" at the head of the pig, and underneath the pig's feet the word "Sandwich," followed by the words "Made Right for Your Delight." Appellants' sandwich stands are designated by signs containing the above trade-mark posted in several conspicuous places on and around each stand. All of the printed matter used in conducting its business bears this trademark.

To show that it was entitled to the relief sought, the burden of proof rested on appellee to establish either (a) that it and its predecessors had the right to appropriate the words "Pig Sandwich" to its exclusive use as an original technical trade-mark, or (b) that the words "Pig Stand" possessed a secondary meaning in the public mind, which designated appellee's goods and furnished the basis for the charge of unfair competition, and that appellant Dixiepig Corporation had employed the words "Pig Sandwich," in conducting its business, in a way from which it could be reasonably presumed that sales of appellants' goods had and would be made as those of appellee.

Viewed in its most favorable light, the evidence failed to disclose facts under which appellee and its predecessors could rightfully appropriate the words "Pig Sandwich," as said words can only refer to some character of food products, and certainly cannot be regarded as fanciful or arbitrary symbols designed to show the origin of the merchandise or goods to be found on sale at appellee's places of business, designated as "Pig Stands." It is to the origin of the article and not its quality that a technical trade-mark is intended in its effect to direct the public mind. The doctrine of technical trade-marks, as firmly established by federal and state decisions, will not permit essentially descriptive words to be employed to indicate the source of an article intended for sale in the market, because, as held in the case of Kellogg Toasted Corn Flake Co. v. Quaker Oats Co. (C. C. A.) 235 F. 657, 663, "for the manifest reason that the fact expressed by the primary meaning of such words is a fact which others are entitled to express by the same words for the same purpose."

The trade-marks of appellant Dixiepig Corporation and appellee, Pig Stand Company, were before the trial court and inherently presented the individuality and similarity, if any, between the symbols and language used in said trade-marks, respectively, and carried their own evidence, indisputable as to whether or not there was any resemblance between the two, and, if so, whether or not the trade-mark of appellant Dixiepig Corporation was of such a resemblance to that of appellee that said appellants' trade-mark was calculated to deceive persons of ordinary intelligence, and the trial court was not authorized to receive evidence from any other source to determine said matters. Radam v. Capital Microbe Destroyer Co., 81 Tex. 122, 16 S. W. 990, 992, 26 Am. St. Rep. 783, from which we quote, viz.: "All the facts were before the court—the trade-marks, the labels, the jugs, and the packages—as presented for sale in the market. It was his province to decide what Impression would be made by them upon persons of ordinary intelligence and care. In such a case an expert should not be allowed to decide for him. Cooper v. State, 23 Tex. 331; Turner v. Strange, 56 Tex. 142; Railroad v. McGehee, 49 Tex. 481; McKay v. Overton, 65 Tex. 85; Shelley v. City of Austin [74 Tex. 612, 12 S. W. 753], supra; Whart. Ev. § 436."

Considering only the evidence furnished by said trade-marks, we do not think it can be drawn therefrom that there exists any conflict between same, either in the language used or in the...