Sun-Maid Raisin Growers of Cal. v. Sunaid Food Products, Inc.
| Citation | 356 F.2d 467 |
| Decision Date | 10 February 1966 |
| Docket Number | No. 22097.,22097. |
| Parties | SUN-MAID RAISIN GROWERS OF CALIFORNIA, Appellant, v. SUNAID FOOD PRODUCTS, INC., Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Dirks B. Foster, Boyken, Mohler & Foster, San Francisco, Cal., for appellant.
Phillip Goldman, Talbot D'Alemberte, Scott, McCarthy, Preston & Steel, Miami, Fla., for appellee.
Before JONES and THORNBERRY, Circuit Judges, and SLOAN, District Judge.
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 of 15 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.
The finding that Sunaid's products were not likely to be mistaken for or confused with Sun-Maid's products is not clearly erroneous. While the record indicates that Sun-Maid has made nominal shipments of various food products for a number of years, there is no indication that Sun-Maid has actually sold any of these goods in commerce. There is certainly no indication that Sun-Maid markets anything other than raisins in the area where Sunaid sells its products. As the goods are dissimilar, confusion of the goods is unlikely.
The finding that there is no likelihood of...
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