Cleo Syrup Corporation v. Coca-Cola Co.

• Decision Date: 06 March 1944
• Docket Number: No. 12592.,12592.
• Citation: 139 F.2d 416,150 ALR 1056
• Parties: CLEO SYRUP CORPORATION v. COCA-COLA CO.
• Court: U.S. Court of Appeals — Eighth Circuit

150 ALR 1056, 139 F.2d 416 (1943)

CLEO SYRUP CORPORATION v. COCA-COLA CO.

No. 12592.

Circuit Court of Appeals, Eighth Circuit.

December 28, 1943.

Writ of Certiorari Denied March 6, 1944.

Ralph Kalish, of St. Louis, Mo. (Paul L. Hale, of St. Louis, Mo., on the brief), for appellant.

John A. Sibley, of Atlanta, Ga., and Samuel W. Fordyce, of St. Louis, Mo. (Frank E. Williams, of St. Louis, Mo., Edwin W. Canada, of Atlanta, Ga., Fordyce, White, Mayne, Williams & Hartman, of St. Louis, Mo., and Spalding, Sibley & Troutman, of Atlanta, Ga., and Rogers, Woodson & Rogers, of Chicago, Ill., on the brief), for appellee.

Before SANBORN, WOODROUGH, and RIDDICK, Circuit Judges.

Writ of Certiorari Denied March 6, 1944. See 64 S.Ct. 638.

SANBORN, Circuit Judge.

The Coca-Cola Company brought this action against the Cleo Syrup Corporation to enjoin it from infringing the trademark "Coca-Cola" and from engaging in unfair competition, and for damages. The defendant denied the charges of infringement and unfair competition. The District Court's findings were in favor of the plaintiff. The court entered a decree enjoining the defendant from:

"(a) Using in connection with the manufacture, offering for sale, or sale of any soft drink or a syrup for the preparation thereof, or ingredient thereof, or any other merchandise of substantially the same descriptive properties:

"(1) The words Cleo-Cola as now used by the defendant or any like word or words or any colorable imitation of either of them as the words Cleo-Cola are now used and displayed.

"(2) Any name or names, word or words, device or devices, which by reason of the appearance thereof or otherwise, induce, or is likely to induce the belief that defendant's goods emanate from plaintiff, or by its authority or which enables or is likely to enable the passing off of defendant's goods as and for the goods of plaintiff."

The defendant, in appealing from the decree, asserts:

1. "That the phrase Cleo Cola, even as now used and displayed by appellant, is not a colorable imitation of, and does not infringe any trade-mark or good-will rights that appellee may have in, to, or under, the phrase Coca-Cola; and

2. "That the name or phrase Coca-Cola, as used and applied by appellee on and in connection with its soft drink syrup and beverages made therefrom, is inherently false and deceptive and violative of and contrary to the public interest and the public policy of this country — that hence appellee is before this Court with unclean hands and consequently entitled to no consideration, respect, or relief whatsoever."

The business, the trade-mark, and the product of the plaintiff are all so well known that they do not require description. The trade-mark "Coca-Cola" has long since come to mean the beverage produced and sold by the plaintiff. To the public generally, the trade-mark means nothing else. The question raised by the defendant's second contention was effectively put to rest by the Supreme Court of the United States in Coca-Cola Company v. Koke Company of America, 1920, 254 U.S. 143, 41 S.Ct. 113, 65 L.Ed. 189, in which that court said (at page 145 of 254 U.S., at page 113 of 41 S.Ct., 65 L.Ed. 189): "* * * Whatever may have been its original weakness, the mark Coca-Cola for years has acquired a secondary significance and has indicated the plaintiff's Coca-Cola Company's product alone."

And (at page 146 of 254 U.S., at page 114 of 41 S.Ct., 65 L.Ed. 189): "* * * The name Coca-Cola now characterizes a beverage to be had at almost any soda fountain. It means a single thing coming from a single source, and well known to the community. It hardly would be too much to say that the drink characterizes the name as much as the name the drink. In other words `Coca-Cola' probably means to most persons the plaintiff's familiar product to be had everywhere rather than a compound of particular substances. Although the fact did not appear in United States v. Coca-Cola Co., 241 U.S. 265, 289, 36 S.Ct. 573, 60 L.Ed. 995, Ann.Cas.1917C, 487, we see no reason to doubt that, as we have said, it has acquired a secondary meaning in which perhaps the product is more emphasized than the producer but to which the producer is entitled."

See also Dixi-Cola Laboratories v. Coca-Cola Co., 4 Cir., 117 F.2d 352, 354 (certiorari denied 314 U.S. 629, 62 S.Ct. 60. 86 L.Ed. 505). One certainly cannot be charged with misbranding or misdescribing a product by calling it what it is. There is no merit in the contention that a court of equity will not afford protection to the plaintiff's trade-mark or prevent its good will from being nibbled away by unfair competitors.

The defendant since 1935 has been engaged in making and selling a beverage similar in appearance to the plaintiff's product. The defendant's beverage is sold and advertised under the trade name "Cleo Cola".

Whether the present dress or make-up of the trade name "Cleo Cola" renders that trade name so similar to the trademark "Coca-Cola" that the former deceives, or will probably deceive, purchasers and cause them to buy the product of the defendant in the belief that it is the product of the plaintiff, is a question of fact. The District Court, which was the trier of the facts, has determined that issue in favor of the plaintiff. This Court, upon review, will not retry issues of fact or substitute its judgment with respect to such issues for that of the trial court. Storley v. Armour & Co., 8 Cir., 107 F.2d 499, 513; Gasifier Mfg. Co. v. General Motors Corporation, 8 Cir., 138 F.2d 197, 199; Travelers Mut. Casualty Co. v. Rector, 8 Cir, 138 F.2d 396, 398. The power of a trial court to decide doubtful issues of fact is not limited to deciding them correctly. Thompson v. Terminal Shares, Inc., 8 Cir., 89 F.2d 652, 655; Pittsburgh Plate Glass Co. v. National Labor Relations Board, 8 Cir., 113 F.2d 698, 701 (affirmed 313 U.S. 146, 61 S.Ct. 908, 85 L.Ed. 1251); Travelers Mutual Casualty Co. v. Rector, supra. In a nonjury case, this Court may not set aside a finding of fact of a trial court unless there is no substantial evidence to sustain it, unless it is against the clear weight of the evidence, or unless it was induced by an erroneous view of the law. Ætna Life Ins. Co. v. Kepler, 8 Cir., 116 F.2d 1, 4, 5; Gasifier Mfg. Co. v. General Motors Corporation, 8 Cir., 138 F.2d 197, 199; Travelers Mutual Casualty Co. v. Rector, supra. The District Court, in making its findings, was under no misapprehension as to the applicable law. See Kann v. Diamond Steel Co., 8 Cir., 89 F. 706, 707; My-T Fine Corporation v. Samuels, 2 Cir., 69 F. 2d 76, 77; Armstrong Paint & Varnish Works v. Nu-Enamel Corporation, 305 U. S. 315, 335, 336, 59 S.Ct. 191, 83 L.Ed. 195. In determining whether there is a sufficient evidentiary basis for the court's findings of fact, we must take that view of the evidence and the inferences deducible therefrom which is most favorable to the plaintiff.

That there is more than a trifling similarity phonetically and otherwise between the trade name "Cleo Cola" and the trademark "Coca-Cola", is apparent. Each consists of two four-letter words, each word commencing with the letter "C". Originally the defendant did not simulate the distinctive script of the Coca-Cola trademark nor the color scheme used by the plaintiff to display its trade-mark. The defendant originally showed the name "Cleo Cola" upon a label the colors of which consisted of brown, light green, pink or flesh color, and white, the words "Cleo Cola" being shown in white upon a brown background. By...