Selchow & Righter Co. v. Western Printing & L. Co.
| Decision Date | 13 May 1940 |
| Docket Number | No. 7154.,7154. |
| Citation | 112 F.2d 430 |
| Parties | SELCHOW & RIGHTER CO. v. WESTERN PRINTING & LITHOGRAPHING CO. et al. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Foley & Brach and Jerome J. Foley, all of Racine, Wis. (Arthur E. Farmer, of New York City, and Jerome J. Foley, of Racine, Wis., of counsel; Benjamin H. Stern, of New York City, on the brief), for appellants.
Lecher, Michael, Whyte & Spohn, of Milwaukee, Wis. (John W. Michael, of Milwaukee, Wis., and Axel V. Beeken and Valdemar Beeken, both of New York City, of counsel), for appellee.
Before TREANOR and KERNER, Circuit Judges, and LINDLEY, District Judge.
Defendants-appellants have prosecuted this appeal from the order of the District Court granting a preliminary injunction during the pendency of the principal action or until further order of the court. The action was predicated on the claim that the defendants were infringing the trademark rights of the plaintiff and were threatening to continue such infringement. The relief sought was a permanent injunction to restrain the defendants from invading the plaintiff's common law rights in the trade-mark and from continuing their unfair business practices and unfair competition against the plaintiff. Other appropriate relief was sought.
At the close of the hearing on plaintiff's motion for a preliminary injunction the District Court made findings of fact and stated its conclusions of law thereon. The findings of the District Court may be summarized as follows:
The suit involves the trade-mark "Parcheesi", and is based both upon infringement of the common law rights of the plaintiff in the trade-mark and unfair competition. The business of plaintiff and its predecessors has been, since 1869, largely devoted to the production of a game which is sold under the name of "Parcheesi." It is evident that an ordinary customer going into a store and asking for the game "Parcheesi" has no information as to who might have manufactured and produced that game; but it appears from "plaintiff's moving papers" that persons in charge of buying games for large stores and retail outlets have for many years associated the game of "Parcheesi" with the plaintiff only and that retail stores, which keep in stock the same game under the name of "India," a name used by defendant, have found that public demand makes it necessary also to carry in stock the game produced by plaintiff under the name "Parcheesi." The plaintiff and its predecessors have built up a good-will in the game "Parcheesi." Plaintiff does not claim that it is entitled to the exclusive use of the game as such; and for some years previous to April, 1939, the defendants, as well as other toy manufacturers, have sold to the trade the same game but under the name of "India." On or about April 1, 1939, defendants caused to be manufactured and thereafter distributed and sold to the trade under the name "Parchesi" the same game which it had been selling under the name of "India." After the commencement of this suit the defendant, Whitman Publishing Company, answered that it had ceased to manufacture the game marked "Parchesi" and submitted to the court a sample of another game marked "Whitman's Pachisi," "having a cover of red or orange with lettering in white," and claimed the right to make and sell the game under such designation. Plaintiff filed a supplemental bill asking that defendants also be enjoined from using the name "Pachisi." The game marked "Parchesi" that defendants manufactured and sold is very similar in appearance, and has very great descriptive resemblance to the game that plaintiff manufactures and sells. There was apparently a deliberate attempt to imitate the plaintiff's game as much as possible without making an exact duplicate. The changes made by the defendants in the sample submitted to the court will not prevent confusion with plaintiff's game. Business concerns which purchase games for the holiday trade usually put in their orders during August and September; and great damage would undoubtedly be done to the plaintiff if defendants were permitted to sell their game pending the outcome of this suit.
The foregoing includes the substance of the findings of fact. On the basis of the facts as found, the court stated the following conclusions of law:
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