Albert Dickinson Co. v. Mellos Peanut Co., No. 9847.

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtKERNER, DUFFY and FINNEGAN, Circuit
Citation179 F.2d 265
Decision Date12 January 1950
Docket NumberNo. 9847.
PartiesALBERT DICKINSON CO. v. MELLOS PEANUT CO. OF ILLINOIS.

179 F.2d 265 (1950)

ALBERT DICKINSON CO.
v.
MELLOS PEANUT CO.
OF ILLINOIS.

No. 9847.

United States Court of Appeals Seventh Circuit.

January 12, 1950.


179 F.2d 266

William T. Woodson, Beverly W. Pattishall, Lewis S. Garner, Chicago, Ill., for appellant.

Robert V. Conners, C. W. Eckert, Nicholas S. Limperis, Chicago, Ill., for appellee.

Before KERNER, DUFFY and FINNEGAN, Circuit Judges.

DUFFY, Circuit Judge.

Plaintiff brought this action claiming that defendant's trade-mark "Block Buster," infringes plaintiff's trade-mark, "Big Buster," and that defendant competed unfairly with plaintiff. On defendant's motion, the court granted a summary judgment in favor of the defendant, from which plaintiff appeals.

Plaintiff's verified complaint alleged, "Defendant's aforesaid product bearing the name Block Buster is likely to be passed off as and for plaintiff's Big Buster popcorn," and that the name, "Block Buster," is a colorable imitation of plaintiff's trademark, "Big Buster." Among other allegations of the complaint were that plaintiff's predecessor, on December 8, 1930, adopted the trade-mark, "Big Buster," to identify and distinguish its popcorn, and registered it on May 26, 1931, under the Trade-Mark Act of 1905; that sales of plaintiff's product bearing plaintiff's trade-mark "Big Buster," have been extensive throughout

179 F.2d 267
the United States and in several foreign countries; that plaintiff has spent large sums in advertising its product sold under its trade-mark; that the name, "Big Buster," means and is understood to mean plaintiff's product to the trade and to the public; that defendant recently adopted the name, "Block Buster," in connection with the sale of its popcorn, and did so with the full knowledge of plaintiff's extensive use of its trade-mark, "Big Buster," and did so for the purpose of trading upon and taking advantage of the reputation and good will of plaintiff's trade-mark, "Big Buster."

Defendant filed a verified answer alleging that its predecessor on January 18, 1944, adopted the name "Block Buster," for use on its popcorn, and registered this trade-mark on October 23, 1945, under the Trade-Mark Act of 1905 15 U.S.C.A. § 1051 et seq.. In its answer defendant makes the following specific denials: that plaintiff's trade-mark has become and is now distinctive of plaintiff's goods; that "Block Buster" is a colorable imitation and infringement of plaintiff's trade-mark, "Big Buster"; that defendant's product bearing the name, "Block Buster," is likely to be passed off as and for plaintiff's "Big Buster" popcorn; that it adopted the name, "Block Buster," as a trade-mark with the knowledge of plaintiff's extensive use of its trade-mark, "Big Buster"; that the use by the defendant of the name "Block Buster," was for the purpose of trading upon and taking advantage of the reputation and good will of plaintiff's trade-mark, "Big Buster"; and that the acts of defendant are likely to result in fraud and deception upon the public.

It will be noted that the pleadings present a number of genuine issues of material facts. Of course the allegations of fact in the pleadings may be pierced by proceedings for a summary judgment under Rule 56, Federal Rules Civil Procedure, 28 U.S.C.A. Engl v. Aetna Life Ins. Co. 2 Cir., 139 F.2d 469, 472; Pen-Ken Gas & Oil Corp. v. Warfield Natural Gas Co., 6 Cir., 137 F.2d 871, 877; New York Life Ins Co. v. Cooper, et al., 10 Cir., 167 F.2d 651, 655; 3 Moore's Federal Practice 3175. Here, when defendant moved for summary judgment, it presented the affidavit of one Mellos, president of the defendant company, which referred to certain exhibits, one of which was the deposition of Lloyd M. Brown, president of the plaintiff company. This deposition was not taken for use in this action, but had been taken by the plaintiff for use in a cancellation proceeding in the Patent Office. Plaintiff objected to its use in this proceeding.

Other exhibits presented by defendant were labels showing the defendant's use of its mark, "Block Buster," and plaintiff's use of its mark, "Big Buster," on 100 lb. burlap sacks; also the use of another mark, "Little Buster," by plaintiff on paper cartons. In his affidavit the president of the defendant company stated that a search revealed the term, "Buster," had been registered over two dozen times for various products, and he produced a list of such registrations. Twelve of said registrations used the term, "Buster Brown," and only one other used the word, "Buster," as the second word of the mark, this being, "Gang Buster," referring to candy. Plaintiff presented one exhibit showing defendant's use of its mark on the label of a paper carton, but although afforded an opportunity to do so, plaintiff did not present any affidavits.

The district court relied chiefly on a side by side visual comparison, stating: "Placing the products of each side by side and by visual comparison having in mind the effect which would be produced in the mind of the ordinary purchaser exercising due care and caution, the court is of the opinion there is little, if any, likelihood such a purchaser would be misled or deceived into accepting the Block Buster product of defendant as and for the Big Buster product of the plaintiff." 81 F.Supp. 626, 629. The district court dismissed from further consideration the allegation of unfair competition in the complaint, holding that it was based on the charge of colorable...

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54 practice notes
  • Chrapliwy v. Uniroyal, Inc., Civ. No. 72 S 243.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • May 31, 1977
    ...favor of the non-moving party. Rose v. Bridgeport Brass Co., 487 F.2d 804, 808 (7th Cir. 1973); Albert Dickinson Co. v. Mellos Peanut Co., 179 F.2d 265, 268 (7th Cir. 1950). As for cross-motions for summary judgment, see 10 Wright & Miller, Federal Practice & Procedure, § 2720 p. 459 This c......
  • Subin v. Goldsmith, No. 198
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 3, 1955
    ...kind of case compel acceptance as true of facts alleged in the movant's affidavits. In Albert Dickinson Co. v. Mellos Peanut Co., 7 Cir., 179 F.2d 265, 268, the court said: "It is undoubtedly a somewhat hazardous course of procedure on a motion for summary judgment for the adverse party not......
  • Standard Oil Company v. Standard Oil Company, No. 5506.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • January 15, 1958
    ...F.2d 398, 401-402; Italian Swiss Colony v. Ambrose & Co., D.C., 94 F.Supp. 896, 897. 20 Albert Dickinson Co. v. Mellos Peanut Co., 7 Cir., 179 F.2d 265, 21 Cf. Marks v. Polaroid Corporation, D.C., 129 F.Supp. 243, 272, affirmed 1 Cir., 237 F.2d 428; Coca-Cola Co. v. Carlisle Bottling Works,......
  • United States Jaycees v. San Francisco Jr. Cham. of Com., No. C-70-2334-CBR.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • August 9, 1972
    ...and unfair competition cases 354 F. Supp. 69 through the use of summary proceedings. See, e.g., Albert Dickinson Co. v. Mellos Peanut Co., 179 F.2d 265, 270 (7 Cir. 1950); Marcus Breier Sons, Inc. v. Marvlo Fabrics, Inc., 173 F.2d 29 (2 Cir. 1949); National Color Laboratories, Inc. v. Phili......
  • Request a trial to view additional results
54 cases
  • Chrapliwy v. Uniroyal, Inc., Civ. No. 72 S 243.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • May 31, 1977
    ...favor of the non-moving party. Rose v. Bridgeport Brass Co., 487 F.2d 804, 808 (7th Cir. 1973); Albert Dickinson Co. v. Mellos Peanut Co., 179 F.2d 265, 268 (7th Cir. 1950). As for cross-motions for summary judgment, see 10 Wright & Miller, Federal Practice & Procedure, § 2720 p. 459 This c......
  • Subin v. Goldsmith, No. 198
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 3, 1955
    ...kind of case compel acceptance as true of facts alleged in the movant's affidavits. In Albert Dickinson Co. v. Mellos Peanut Co., 7 Cir., 179 F.2d 265, 268, the court said: "It is undoubtedly a somewhat hazardous course of procedure on a motion for summary judgment for the adverse party not......
  • Standard Oil Company v. Standard Oil Company, No. 5506.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • January 15, 1958
    ...F.2d 398, 401-402; Italian Swiss Colony v. Ambrose & Co., D.C., 94 F.Supp. 896, 897. 20 Albert Dickinson Co. v. Mellos Peanut Co., 7 Cir., 179 F.2d 265, 21 Cf. Marks v. Polaroid Corporation, D.C., 129 F.Supp. 243, 272, affirmed 1 Cir., 237 F.2d 428; Coca-Cola Co. v. Carlisle Bottling Works,......
  • United States Jaycees v. San Francisco Jr. Cham. of Com., No. C-70-2334-CBR.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • August 9, 1972
    ...and unfair competition cases 354 F. Supp. 69 through the use of summary proceedings. See, e.g., Albert Dickinson Co. v. Mellos Peanut Co., 179 F.2d 265, 270 (7 Cir. 1950); Marcus Breier Sons, Inc. v. Marvlo Fabrics, Inc., 173 F.2d 29 (2 Cir. 1949); National Color Laboratories, Inc. v. Phili......
  • Request a trial to view additional results

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