American Cereal Co. v. Eli Pettijohn Cereal Co.

• Decision Date: 05 October 1896
• Docket Number: 315.
• Citation: 76 F. 372
• Parties: AMERICAN CEREAL CO. v. ELI PETTIJOHN CEREAL CO.
• Court: U.S. Court of Appeals — Seventh Circuit

76 F. 372

AMERICAN CEREAL CO. v. ELI PETTIJOHN CEREAL CO.

No. 315.

United States Court of Appeals, Seventh Circuit.

October 5, 1896

California Breakfast Food Company, which succeeded to the business and continued to manufacture the product at that place, and to sell the same under the same name. The corporation erected or leased a mill in Minneapolis, operated it, and acquired from the three Pettijohns all their rights to the use of the name 'Pettijohn' and 'Pettijohn's,' the word 'California,' and the words 'Breakfast Food.' This business, with its machinery and good will and trade-name, was sold to the appellee in October, 1893, who continued the business as successor, selling rolled wheat under the same name, in packages of the same size and shape, and under the same labels, with such changes as were necessary to indicate that the American Cereal Company was the proprietor. On January 7 1894, the mill was destroyed by fire, since which time the appellee has manufactured this product at other mills owned by it, disposing of the product under the same name. Eli Pettijohn, the father of the three brothers named, came to the city of Minneapolis from his home in the state of California in the autumn of 1893, and, after the destruction of the appellee's mill by fire, in connection with certain other persons organized a corporation for the manufacture and sale of rolled wheat; and placed upon the vessels containing the product the trade mark and name 'Eli Pettijohn's Best,' accompanied by a picture of Eli Pettijohn. It is alleged in the bill that at this time the name of Pettijohn was not known in the United States of America in connection with any cereal food product other than the rolled wheat which was first made by William A. Pettijohn and his brothers at Minneapolis, and by their successors in that business, except that it is alleged that some rolled wheat had been made in the state of California, and in other parts of the United States west of the Rocky Mountains, under the name of 'Pettijohn's California Breakfast Gem,' and that the name 'Pettijohn,' used in connection with rolled wheat, has come to indicate and mean to purchasers and consumers east of the Rocky Mountains the rolled wheat made by the appellee.

The answer asserts that rolled wheat was first invented and made known by Eli Pettijohn, the father of the three brothers mentioned, who originated the article and commenced its manufacture at San Francisco in 1877, since which time he has continued to manufacture and sell the product under his own name and under various trade-names, and that Eli Pettijohn instructed his sons in the manner of making such product, and suffered and permitted them to make and sell the same at divers times and places for his and their benefit; that, at the time of the organization of the appellee, Eli Pettijohn was part owner in the Pettijohn Manufacturing & Milling Company, which operated a mill at Oakland, Cal manufacturing and selling rolled wheat under the trade-names of 'Pettijohn's Breakfast Food' and 'Pettijohn's Breakfast Pearls'; that Eli Pettijohn first applied the name 'Pettijohn' to rolled wheat in 1877, in San Francisco; that he continued to sell the product under the name of 'Pettijohn's Rolled Wheat' until the year 1880; that in 1884 he resumed the manufacture of rolled wheat in San Francisco under the name of 'Pettijohn's Pearled Rolled Wheat,' which was afterwards changed to 'Pettijohn's Breakfast Gem,' and that he continued the manufacture and sale of the product under that name until September, 1889; that in February, 1892, Eli Pettijohn again resumed the manufacture and sale of that product in San Francisco, and so continued until ...