Cantrell & Cochrane, Ltd. v. Hygeia Distilled Water Co., Inc., 141.

• Decision Date: 18 January 1922
• Docket Number: 141.
• Citation: 283 F. 400
• Parties: CANTRELL & COCHRANE, Limited, v. HYGEIA DISTILLED WATER CO., Inc.
• Court: U.S. Court of Appeals — Second Circuit

283 F. 400

CANTRELL & COCHRANE, Limited, v. HYGEIA DISTILLED WATER CO., Inc.

No. 141.

United States Court of Appeals, Second Circuit.

January 18, 1922

The following memorandum decision was filed in the court below:

The filing of stipulation as to facts leaves nothing for the court but a consideration of plaintiff's admittedly valid trade-mark and defendant's alleged infringement. In a technical trade-mark case the intent of the infringer is immaterial. Hutchinson, Pierce & Co. v. Loewy, 163 F. 42, 90 C.C.A. 1. Yet, even in the absence of intent, the test remains the same; i.e., the likelihood of deceiving purchasers. Capewell Horse Nail Co. v. Green, 188 F 20, 110 C.C.A. 170. And in considering what is and what is not an infringement 'the test is to be found in the ensemble,' as has lately been well said in Thum Co v. Dickinson, 245 F. 609, 613, 158 C.C.A. 37, 41, a case in which certiorari was denied in the Supreme Court.

It is also true that mere color cannot be appropriated as a trade-mark; yet it is also true that imitation of a pattern of colors is evidence of infringement. When I consider the labels of plaintiff and defendant I am necessarily driven to the conclusion that the Hygeia Company's device is so nearly that of plaintiff as to deceive the purchasing public though probably not the more observant person engaged in retail trade. There is a similarity in shape, in color scheme, in the use of phrases like 'Free from Alcohol,' and 'Aromatic,' which is not only per se deceptive, but strong evidence of intentional imitation. This belief is confirmed on observing how each label is or contains a lozenge of which the horizontally opposite angles contain yellow ornamentation, while the upper angle displays an arbitrary set of marks or pictures in red and back.

None of these details is conclusive, but the ensemble satisfies me that the plaintiff's rights are being infringed, and a decree may pass accordingly. The physical exhibits have been deposited in the exhibit room of the Circuit Court of Appeals, whence they may be obtained on proper application followed by order.

Holm, Whitlock & Scarff, of New York City (Herbert D. Chabot and Victor E. Whitlock, both of New York City, of counsel), for appellant.

Jeffery, Kimball & Eggleston, of New York City (Oscar W. Jeffery, of New York City, of counsel), for appellee.

Before ROGERS, MANTON, and MAYER, Circuit Judges.

MAYER Circuit Judge.

There is really no question of law in this case, and no occasion to reiterate at length familiar principles. Smith- Kline & French Co. v. American Druggists' Syndicate (C.C.A.) 273 F. 84. What is involved is a question of fact; i.e., whether two labels so resemble each other that the alleged infringing label would be likely to deceive the ordinary customer, exercising ordinary care, into believing that he was getting plaintiff's and not defendant's ginger ale. Usually first impressions, in cases of this character, are the safest guides.

If the decider of the facts, whether in the instance court or here begins to analyze carefully the respective features, such as size, shape, color, legend, and arrangement of a label of this character, he is liable to lose the value of his first impression, which (without attempting...