Coca-Cola Co. v. Carlisle Bottling Co.

• Decision Date: 09 June 1927
• Citation: 20 F.2d 909
• Parties: COCA-COLA CO. v. CARLISLE BOTTLING CO.
• Court: U.S. District Court — Eastern District of Kentucky

20 F.2d 909 (1927)

COCA-COLA CO. v. CARLISLE BOTTLING CO.

District Court, E. D. Kentucky.

June 9, 1927.

Candler, Thomson & Hirsch, of Atlanta, Ga., and Allen, Botts & Duncan, of Lexington, Ky., for plaintiff.

Leslie Morris, of Frankfort, Ky., for defendant.

ANDREW M. J. COCHRAN, District Judge.

This suit is before me on motion of plaintiff for preliminary injunction. It is a suit for infringement of its trade-mark, "Coca-Cola," and for unfair competition. The injunction sought is against continuing to infringe and compete unfairly. It is claimed that plaintiff's trade-mark is infringed by the trade-mark "Roxa-Cola," applied by defendant to its goods. The unfair competition complained of consists in using such trade-mark on goods of the same color and consistency as plaintiff's and substituting and passing off defendant's goods as the goods of plaintiff. Point is made in argument of the likeness of the crowns used on defendant's bottles to those used on plaintiff's, but no mention of this is made in the bill. It is not claimed that there is any substantial similarity between the bottles used by the two.

Defendant and its predecessor began business in 1906. During all that time they have sold the same goods, in the same bottles, with the same crowns, and under the same trade-mark. This has been done to plaintiff's knowledge. Defendant's plant is located at Carlisle, county seat of Nicholas County, in this district, and its business seems to be confined to that and two or three adjoining counties. Plaintiff made no complaint of defendant's conduct until the spring of 1923. It then did so through its general counsel, Candler, Thomson & Hirsch, of Atlanta, Ga. The burden of their complaint was that some of the retail dealers in defendant's vicinity were substituting its product for plaintiff's. If there was any complaint that defendant's trade-mark was an infringement of plaintiff's, it was not stressed. Some correspondence was had between them and defendant. Their last letter was dated March 19, 1923, and they called therein for answer to their previous letter of March 9, 1923. On March 16, 1923, plaintiff, by Charles V. Rainwater, its secretary and treasurer, wrote to defendant the following letter, to wit:

"The Coca-Cola Bottling Company "General Office, 231-232 and 233 Candler Building. "Coca-Cola. "Address all communications to Chas V Rainwater, secretary and treasurer. "Atlanta, Ga., March 16, 1923.

"The Carlisle Bottling Works, Carlisle, Ky. — Gentlemen: Attention Mr. G. C. Myers. Answering further your letter of the 6th inst., I want to advise that I have had a conference with Messrs. Candler, Thomson & Hirsch in regard to the correspondence which they have had with you covering certain practices in your city.

"It appears from this conference that the complaint of Messrs. Candler, Thomson & Hirsch in behalf of their client is because of unfair competition, due to the practice of certain dealers in your city substituting your product for Coca-Cola, and further they have evidence which indicates that you yourself have filled orders with your product when Coca-Cola was called for.

"It appears from your correspondence that you are under the impression that the evidence gathered by Messrs. Candler, Thomson & Hirsch has come to them through some competition. This I find is not the case. The evidence they believe is bona fide and was secured in a very reliable manner.

"I feel that, if you can assure Candler, Thomson & Hirsch that no further practice of this kind will be permitted by you in your own plant, and that you will use every effort in discouraging the dealers in doing so, that you will have not further difficulty. You must realize that, when you put into the hands of a dealer a product that enables him to unfairly compete with Coca-Cola, you are a party to the transaction.

"I trust that you will consider this matter very carefully, and if you can write a letter of assurance to Messrs. Candler, Thomson & Hirsch on these points of unfair competition, I believe that you will not have any further difficulty, as stated.

"Yours very truly "The Coca-Cola Bottling Company "By Chas. V. Rainwater, Sec. & Treas." "RG

It is stated therein that the complaint of plaintiff's counsel against defendant, which the writer has arrived at from conference with them, was "unfair competition, due to the practice of certain dealers in your city substituting your product for Coca-Cola, and further they have evidence which indicates that you yourself have filled orders with your product, when Coca-Cola was called for."

There is no intimation therein that it was claimed that defendant was infringing plaintiff's trade-mark. The letter concludes with these words:

"I feel that, if you can assure Candler, Thomson & Hirsch that no further practice of this kind will be permitted by you in your own plant, and that you will use every effort in discouraging the dealers in doing so, that you will have no further difficulty. You must realize that, when you put into the hands of a dealer a product that enables him to unfairly compete with Coca-Cola, you are a party to the...