Bennett v. McKinley
| Decision Date | 09 January 1895 |
| Citation | 65 F. 505 |
| Parties | BENNETT et al. v. McKINLEY et al. |
| Court | U.S. Court of Appeals — Second Circuit |
Brewster Kissam (Geo. H. Fletcher, of counsel), for appellants.
Chas G. Coe, for appellees.
Before WALLACE and SHIPMAN, Circuit Judges.
The question in this case is whether the word 'Instantaneous' constitutes a valid trade-mark, when applied to a preparation of tapioca which is distinguished from other preparations of that article by reason of its adaptability for immediate use without the preliminary soaking required by other preparations. According to the theory of the complainants, the tapioca sold in this country prior to 1891 was of three varieties,-- the flake, pearl, and granulated,-- and, in either form, required a prolonged soaking in water, lasting from three to six hours, to prepare it for table use; and one of the complainants, after experimenting to ascertain whether tapioca could not be so treated that this prolonged soaking might be dispensed with discovered that it could be, by grinding the tapioca to a further degree of fineness. In the fall of 1893 the complainants commenced to manufacture the finely-ground article, and since then have advertised and sold it under the name of 'Instantaneous Tapioca.' Upon the packages in which it is sold by them is printed this notice 'Requires no soaking, but softens instantly. ' According to the theory of the defendants, the finely-ground article did not originate with the complainants, but had been imported from France, and had been largely and continuously sold in this country, prior to the enactment of the so-called 'McKinley Tariff Act,' by the name of 'Tapioca Exotique'; and subsequently, induced by the high rate of duty imposed upon it by the McKinley tariff act, the defendants began to manufacture and sell the article in this country. Their article is sold under the name of 'Instantaneous Cassava Tapioca.' Upon their packages among others, is printed the following statement: 'This substance is soluble in water, forms a nourishing food, and can be prepared instantaneously-- without soaking-- into puddings, custards, blanc mange, griddle cakes, &c.'
There is a marked dissimilarity in the symbols used upon their packages by the respective parties, and each print their own names upon their own packages, in conspicuous type, as the manufacturers. If the most casual inspection of the packages would not lead a purchaser to discriminate immediately, the difference in their appearance is certainly sufficient to preclude any inference that the defendants have attempted to palm off their article upon the public for the article manufactured by the complainants. It is plain that the complainants are not...
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...(American Washboard Co. v. Mfg. Co., 43 C.C.A. 233, 103 F. 281, 50 L.R.A. 609; 'Instantaneous' to a tapioca ready for use (Bennett v. McKinley, 13 C.C.A. 25, 65 F. 505); 'Iron Bitters' (Brown Chemical Co. v. (C.C.) 31 F. 433, affirmed in 139 U.S. 540, 11 Sup.Ct. 625, 35 L.Ed. 247); 'Acid Ph......
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... ... the article, but was an arbitrary or fanciful term. The law, ... we think, well stated by the Court of Appeals in Bennett ... v. McKinley, 65 F. 505, 13 C.C.A. 25, as follows: ... 'No ... principle of the law of trade-mark is more familiar than ... that ... ...
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Wisconsin Electric Co. v. Dumore Co.
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