Albert Dickinson Co. v. MELLOS PEANUT CO. OF ILLINOIS
| Decision Date | 07 January 1949 |
| Docket Number | No. 47 C 1618.,47 C 1618. |
| Citation | 81 F. Supp. 626 |
| Parties | ALBERT DICKINSON CO. v. MELLOS PEANUT CO. OF ILLINOIS, Inc. |
| Court | U.S. District Court — Northern District of Illinois |
Rogers & Woodson, of Chicago, Ill., for plaintiff.
Conners, Eckert & Limperis, of Chicago, Ill., for defendant.
LA BUY, District Judge.
The complaint herein alleges plaintiff prepares and sells popcorn for human consumption, that on May 26, 1931, it registered in the United States Patent Office its trademark Big Buster, No. 283,322; that said trademark when adopted was new, fanciful and arbitrary and never before used by any other concern on any goods of substantially the same properties; that plaintiff's sales have been extensive and large sums were spent in advertising the trademarked product; that the trademark Big Buster is distinctive of the plaintiff's goods and has become identified by the trade and public as plaintiff's product and plaintiff's product only. The complaint further alleges that defendant is engaged in the distribution and sale of popcorn which during the last few months have been distributed and sold under the name Block Buster; that such use was begun long after plaintiff's mark Big Buster became well and favorably known to the public; that the name Block Buster is a colorable imitation and infringement of the plaintiff's mark Big Buster and is likely to be passed off for plaintiff's Big Buster popcorn; that plaintiff is informed that defendant adopted its name with full knowledge of the extensive use of plaintiff's mark and its acceptance by the public as being distinctive of plaintiff's product; that the adoption of the name Block Buster was for the purpose of trading upon plaintiff's good will and reputation and defendant has refused to discontinue its use of the name; that the acts of defendant are likely to result in fraud and deception upon the public and defendant should be enjoined from using the name Block Buster or any other colorable imitation.
Defendant's answer denies that plaintiff's mark when adopted was new, fanciful and arbitrary, denies that it has become distinctive of plaintiff's product, denies defendant's mark is a colorable imitation of plaintiff's, denies defendant's product is likely to be passed off as plaintiff's product, denies it adopted its mark with full knowledge of plaintiff's established good will and extensive use; denies it was adopted for the purpose of trading on plaintiff's reputation and good will, and denies that defendant's use is likely to result in fraud and deception to the public. The answer admits the other allegations of the complaint or declares defendant is without knowledge as to the truth thereof. As an affirmative defense it is alleged the trademark Block Buster was registered in the United States Patent Office on January 18, 1944.
Defendant has filed a motion for summary judgment based upon Exhibit A, being an example of defendant's product as sold in burlap bags bearing the mark Block Buster and its trademark registration; Exhibit B, being an example of the plaintiff's product as sold in burlap bags bearing the mark Big Buster; Exhibit C, being the deposition of Lloyd M. Brown, president of plaintiff, Albert Dickinson Company; Exhibit D, being a report of a search in the United States Patent Office records of the trademark "Buster"; Exhibit E, being an example of plaintiff's product bearing the mark Little Buster. Two other examples were submitted, one by plaintiff as its Exhibit A, attached to its reply brief, showing a paper carton distributed by defendant bearing the mark Block Buster, and, at the court's request, an example of a paper carton distributed by plaintiff bearing the mark Big Buster.
Under Rule 56 of the Rules of Civil Procedure, 28 U.S.C.A., motion for summary judgment is confined to a consideration of facts which are not disputed or the dispute of which raises no genuine issue of material fact. Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 64 S.Ct. 724, 88 L.Ed. 967. The question here presented is, therefore, whether from the evidence submitted on the issues if produced at trial would justify submitting the case to a jury or whether the moving party would be entitled to a judgment as a matter of law.
Adjudication of trademark infringement should be made only when the mark charged to infringe is so strikingly similar that on its face it is calculated to result in confusion. Rytex Co. v. Ryan, 7 Cir., 1942, 126 F.2d 952, as modified in Barbasol Co. v. Jacobs, 7 Cir., 1947, 160 F. 2d 336. It is the generally accepted rule that a symbol is confusingly similar to another trademark if an ordinary prospective purchaser, exercising due care in the circumstances is likely to regard it as coming from the same source as the trademarked article. The test to be applied, therefore, is whether the labels are likely to deceive a purchaser exercising ordinary prudence and not whether it would deceive a careless buyer who makes no examination. Victor-American Fuel...
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Carter v. Davison
...of the second amended petition which tended to overcome that prima facie showing, was not genuine. In Albert Dickinson Co. v. Mellos Peanut Co., D.C.Ill., 81 F.Supp. 626, reversed 7 Cir., 179 F.2d 265, 268, the court held that where defendant moved for summary judgment presenting an affidav......
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Albert Dickinson Co. v. Mellos Peanut Co.
...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......