356 F.2d 467 (5th Cir. 1966), 22097, Sun-Maid Raisin Growers of Cal. v. Sunaid Food Products, Inc.

Docket Nº:22097.
Citation:356 F.2d 467, 149 U.S.P.Q. 238
Party Name:SUN-MAID RAISIN GROWERS OF CALIFORNIA, Appellant, v. SUNAID FOOD PRODUCTS, INC., Appellee.
Case Date:February 10, 1966
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 467

356 F.2d 467 (5th Cir. 1966)

149 U.S.P.Q. 238

SUN-MAID RAISIN GROWERS OF CALIFORNIA, Appellant,

v.

SUNAID FOOD PRODUCTS, INC., Appellee.

No. 22097.

United States Court of Appeals, Fifth Circuit.

February 10, 1966

Page 468

Phillip Goldman, Talbot D'Alemberte, Scott, McCarthy, Preston & Steel, Miami, Fla., for appellee.

Before JONES and THORNBERRY, Circuit Judges, and SLOAN, District judge.

PER CURIAM.

Sun-Maid Raisin Growers of California, the appellant here and the plaintiff below, is an agricultural cooperative engaged primarily in the packing and marketing of raisins. It is incorporated under the laws of California. The trademark 'SUN-MAID' has been in continuous use in interstate commerce by the appellant or its predecessors since 1915 and has been registered in the United States Patent Office since 1917. The mark has become incontestable within the provisions of15 U.S.C.A. § 1065.

Sunaid Food Products, Inc., the appellee here and the defendant below, is a Florida corporation, engaged in the distribution of a large variety of fruit products under its trademark since 1948. It does not produce raisins and it does not sell them except as a component of one of its products.

The goods of both parties are normally sold in food stores and purchased by the same consumers, usually grocery-shopping housewives. The primary products are not in direct competition.

The appellant's claim of trademark infringment is based solely on the Lanham Act, 15 U.S.C.A. § 1114(1)(a). A count for unfair competition was expressly waived on appeal. The trial court, sitting without a jury, found that, as there was no direct competition, the goods of Sunaid would not be confused with or mistaken for the goods of Sun-Maid. It was also found that there was no likelihood of the goods of Sunaid being mistakenly thought to have been produced or sponsored by Sun-Maid. The two trademarks were found not to be confusingly similar. These findings are matters of fact and not to be disturbed unless clearly erroneous. Frostie Co. v. Dr. Pepper Co., 5 Cir. 1965, 341 F.2d 363; Aloe Creme Lab., Inc. v. Texas Pharmacal Co., 5 Cir. 1964, 335 F.2d 72; American Foods, Inc. v. Golden Flake, Inc., 5 Cir. 1963, 312 F.2d 619; Sears, Roebuck & Co. v. All States Life Ins. Co., 5 Cir. 1957, 246 F.2d 161, cert. den., 355 U.S. 894, 78 S.Ct. 268, 2 L.Ed.2d 192.

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