Colburn v. Puritan Mills
| Decision Date | 07 December 1939 |
| Docket Number | No. 6957.,6957. |
| Parties | COLBURN v. PURITAN MILLS, Inc. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Albert J. Fihe, of Chicago, Ill., for appellant.
Samuel E. Hirsch, W. Bartlett Jones, and Julian H. Levi, all of Chicago, Ill., for appellees.
Before EVANS, TREANOR, and KERNER, Circuit Judges.
The District Court dismissed, for want of equity, plaintiff's suit which charged infringement of her registered trade-mark "Py Do" by defendant's trade name "Py-O-My." Both are used to describe prepared dough used in making pies.
Plaintiff obtained her trade-mark in 1926, and alleges extensive interstate use of her product; that the public has come to associate the product with her trade-mark "Py Do," a facsimile of which is herewith reproduced:
Plaintiff first sold her product in tin containers, the lid of which carried the trade-marked words. She also sold her product in a cellophane bag on which the trade-marked name appears, but in different form and type, as follows:
Defendant's label is also herewith reproduced:1
It was conceded at the argument that there was no unfair competition so far as the appearance of the respective packages is concerned.
Plaintiff began marketing her product in 1925 and soon was selling five to seven thousand pounds of pie dough a day, but because of some misfortune, not material here to relate, she lost most of that business. Defendant first came on the market in 1937. Defendant sold some seventeen thousand cases of its pie dough mixture (each case contained about twelve pounds of product). Its assignee sold about eleven hundred cases from August to December, 1938.
Plaintiff alleged that because of the similarity in names of the respective products, the public was confounded and deceived into purchasing defendant's product, when they intended to buy hers, to her great damage. Defendant denies intent to deceive, denies confusion of the respective products, and denies damage to plaintiff.
The District Court, with admirable brevity, completely and squarely met and disposed of the controlling issues when it said:
Plaintiff relies heavily on our opinion in Nu-Enamel Corp. v. Armstrong Paint & Varnish Works, 7 Cir., 95 F.2d 448. But in trade-mark cases, even more than in other litigation, precedent must be studied in the light of the facts of the particular case.
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...Laboratories v. Coca-Cola Co., 4 Cir., 1941, 117 F.2d 352 ('Dixi-Cola' not an infringement of 'Coca-Cola'); Colburn v. Puritan Mills, Inc., 7 Cir., 1939, 108 F.2d 377 ('Py-Do' not infringed by 'Py-O-My,' a pie-dough product); Warner Publication v. Popular Publications, Inc., 2 Cir., 1937, 8......
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Dixi-Cola Laboratories v. Coca-Cola Co.
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...the likelihood of confusion depends on "varying human reactions to situations incapable of exact appraisement," Colburn v. Puritan Mills, Inc., 108 F.2d 377, 378 (7th Cir.1939), this Court has concluded that determining the likelihood of confusion is an "inherently factual" issue that depen......
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