Chemical Corp. of America v. Anheuser-Busch, Inc.
Decision Date | 19 November 1962 |
Docket Number | No. 19007.,19007. |
Citation | 306 F.2d 433 |
Parties | CHEMICAL CORPORATION OF AMERICA, Appellant, v. ANHEUSER-BUSCH, INCORPORATED, Appellee. |
Court | U.S. Court of Appeals — Fifth Circuit |
Julius F. Parker, Caldwell, Parker, Foster, Madigan & Oven, Tallahassee, Fla., for appellant.
Roy A. Lieder, St. Louis, Mo., J. Lewis Hall, Tallahassee, Fla., Owen J. Ooms, Ooms, Welsh & Bradway, Chicago Ill., Gravely, Lieder & Woodruff, St. Louis Mo., for plaintiff-appellee, Hall, Hartwell & Douglass, Tallahassee, Fla., of counsel.
Before TUTTLE, Chief Judge, and BROWN and BELL, Circuit Judges.
This is a suit brought by the appellee, Anheuser-Busch, Incorporated, the owner of the slogan, "Where there's life . . . there's Bud," used in the sale of Budweiser beer, seeking to enjoin, as an infringement, a slogan subsequently adopted and used by the defendant-appellant in the sale of a combined floor wax and insecticide, "Where there's life . . . there's bugs." After a full trial on the merits, the trial judge granted a permanent injunction against the use of the "Bugs" slogan by the appellant.
Without making any significant attack on the findings of fact, appellant here contends that these facts do not, under the Florida law, which appellant contends is the standard to be applied, provide basis for the granting of an injunction. Appellant's basic contention is that since it is clear that plaintiff and defendant are not in actual competition in the sale of their products — the one selling beer and the other selling a combined insecticide and floor wax — it has every right to appropriate and make use in any way it sees fit of the slogan which the appellee has popularized by the expenditures of effort and money over the years, regardless of any resulting injury or damage to the appellee caused by any confusion as to the source of the insecticide or by any dilution of or depreciation of the value of the slogan.
Appellee contends, on the contrary, that it has: (1) a federal right under the Lanham Act, 15 U.S.C.A. § 1114(1), which point was ruled against it by the trial court, and (2) a state common law action under the Florida law. It contends that the trial court properly found threatened injury to its common law trademark or business slogan and acts of unfair competition justifying the intervention of a court of equity. We shall first discuss the issue on the assumption that it is controlled solely by the Florida laws as in a diversity case.
We first dispose of the appellant's contention that the appellee is here seeking to preempt for itself exclusive use of any slogan containing the words "Where there's life." This is clearly not embraced in any claim made by the appellee. The appellee says merely that the complete slogan, "Where there's life . . . there's Bud," has, through its wide and repeated use, particularly by radio and television programs, become in fact identified with its product, Budweiser beer, and with it as the manufacturer of the product. It says that the defendant's use of a slogan that is deceptively similar to the entire slogan created by it is the thing to be restrained. It is obvious to any listener or reader that from any point of view from which it may be heard or seen it is the completed "bugs" slogan that is deceptively familiar with the "Bud" slogan, rather than merely the use of the words, "Where there's life." We conclude, therefore, that any protection that may be afforded to the appellee on the facts of this case would not, as fully recognized by the appellee, result in the appropriation of the words, "Where there's life," in combination with all other words by the appellee to the exclusion of all others.
The main thrust of the appellant's argument in this Court is that the absence of direct competition between Anheuser-Busch and Chemical Corporation of America in the sale by the former of beer and the sale by the latter of floor wax, prevents a court of equity, applying Florida law, from enjoining a deceptively similar slogan used by the latter in the sale of its products, notwithstanding the finding of the trial court that the adoption of the "bugs" slogan was with knowledge of the "Bud" slogan, and that the use of the "bugs" slogan would cause confusion in the minds of the public as to the source of the floor wax product and would damage the "public image" of the appellee by associating in the minds of the public the idea of bugs with a food product.
Appellant supports this thesis by referring to Florida cases in which the courts stress the matter of competition in cases in which the owner of a trademark has attempted to prevent its use by another in the sale of the same or similar products, particularly Stagg Shop of Miami, Inc. v. Moss, 120 So.2d 39, a case decided by the District Court of Appeals of...
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