Allen B. Wrisley Co. v. Iowa Soap Co.

Decision Date30 March 1903
Docket Number1,794.
Citation122 F. 796
CourtU.S. Court of Appeals — Eighth Circuit

The deceit or probable effect of the ordinary purchase so that he buys or probably will buy the articles of one manufacturer or vendor as those of another is an indispensable element of a cause of action for unfair competition.

It is the duty of a manufacturer or vendor to use a name and dress for his goods which will enable common purchasers, who use ordinary care to discover whose manufacture or property they are purchasing, to avoid buying his goods as those of his competitors. But he is not required to so distinguish his articles that careless and indifferent buyers will know by whom they are made or sold. His competitor has no better right to the monopoly of the trade of the negligent and indifferent then he has.

The plaintiff had established a large and lucrative trade in a superior brand of soap which it called and marked 'Old Country Soap.' The defendant made and sold a soap which it called and branded 'Our Country's Soap.' The packages of the two manufacturers were of the same size and shape, but the dress of the defendant's product bore the defendant's name, and its place of manufacture, and was so unlike that of the plaintiff that it was not likely to deceive a common purchaser who exercised ordinary care. Held the use of the term 'Our Country' as a brand or name for the soap under these circumstances did not constitute unfair competition.

Taylor E. Brown (C. Clarence Poole and Wm. J. Roberts, on the brief), for appellant.

W. E Blake, for appellees.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN Circuit Judge.

The complainant, Allen B. Wrisley Company, a corporation, and its predecessor, manufactured at Chicago, in the state of Illinois, and sold throughout the country in pound packages a soap which they branded 'Old Country Soap,' from 1876 until the commencement of this suit. In 1898 the Iowa Soap Company, the defendant, commenced to make and has since manufactured at Burlington, in the state of Iowa, and sold throughout the country a soap in pound packages, which it branded 'Our Country's Soap.' The complainant exhibited its bill to restrain the Iowa company from the use of the name 'Our Country's' upon its soap on the ground that the use of its infringed its trade-mark 'Old Country,' which it had registered in the Patent Office, and constituted unfair competition.

But geographical terms and words in common use to designate a locality, a country, or a section of a country cannot be monopolized as trade-marks. Shaver v. Heller & Merz Co., 108 F. 821, 831, 48 C.C.A. 48, 59; Canal Co. v. Clark, 13 Wall. 311, 321, 20 L.Ed. 581; Mill Co. v. Alcorn, 150 U.S. 464, 14 Sup.Ct. 151, 37 L.Ed. 1144; Chemical Co. v. Meyer, 139 U.S. 540, 546, 11 Sup.Ct. 625, 35 L.Ed. 247; Manufacturing Co. v. Trainer, 101 U.S. 51, 56, 25 L.Ed. 993; Goodyear's India-Rubber Glove Mfg. Co. v. Goodyear Rubber Co., 128 U.S. 598, 602, 9 Sup.Ct. 166, 42 L.Ed. 535; Continental Ins. Co. v. Continental Fire Ass'n (C.C.) 96 F. 846; Brown Chemical Co. v. Frederick Stearns & Co. (C.C.) 37 F. 361; Chemical Works v. Muth (C.C.) 35 F. 524, 1 L.R.A. 44; Illinois Watch-Case Co. v. Elgin Nat. Watch Co., 94 F. 667, 35 C.C.A. 237; New York & R. Cement Co. v. Coplay Cement Co. (C.C.) 45 F. 212; Iron Co. v. Uhler, 75 Pa. 467, 15 Am.Rep. 599; Connell v. Reed, 128 Mass. 477, 35 Am.Rep. 397; Morgan Envelope Co. v. Walton, 36 F. 605, 30 C.C.A. 383. 'Old Country' is a term in common use to designate a country occupied by civilized man before the American continent was. It plainly means a different country from our country, just as the 'Old Continent' means the content of Europe as distinguished from our continent. It is both a geographical term and a term in common use to designate a country. The complainant may not, therefore, exclude others from its use, or become the owner of any property in it as a trade-mark. Hence its bill cannot be sustained for infringement of a technical trade-mark.

But the use of geographical or descriptive words to institute or maintain unfair competition may be lawfully enjoined by a court of equity to the same extent as the use of any other terms or symbols (Shaver v. Heller & Merz Co., 48 C.C.A. 48, 108 F. 832, and cases there cited), and counsel for the complainant insist that it is entitled to an injunction on the ground of unfair competition. Deceit is the basis of suits of this character. The intention to palm off one's goods as those of another, and the use of suitable means to effect that intention, are both essential elements of a good cause of action for unfair competition. The intention alone, without the actual or probable use of means calculated 'to convey a false impression to the public mind, * * * and to mislead and deceive the ordinary purchaser,' furnishes no ground for relief, because an intent to injure, where no injury is or will be inflicted causes no legal damage. McLean v. Fleming, 96 U.S. 254, 256, 24 L.Ed. 828; Kann v. Diamond Steel Co., 89 F. 706, 712, 32 C.C.A. 324, 330; N. K. Fairbank Co. v. R. W. Bell Mfg. Co., 23 C.C.A. 554, 561, 77 F. 869, 876. Here, as elsewhere in the entire domain of human action, though, the intent may be lawfully inferred from the words and deeds of the actor on the familiar principle that every one is presumed to intend the natural and probable effect of his acts. In searching for this intent, however, and in considering the means adopted by a manufacturer or a vendor to sell his articles of merchandise, it must be remembered that the intent to institute or to maintain fair competition and the use of reasonable means to effect this purpose are to be commended and promoted, not restrained. Every manufacturer and vendor has the undoubted right to sell the goods he makes or owns to the public, to his own customers, and to the customers of his competitors if he can, at lower prices and on better terms than those furnished by them, and by these and by all fair means to divert their trade to himself, even though his activity and enterprise may destroy the business of his rivals. The only intention the law condemns is the purpose of a manufacturer or vendor to palm off his own goods as those of his competitor, and the only acts from which such an intention may be lawfully inferred...

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