Consumers Petroleum Co. v. Consumers Co., 9859

• Decision Date: 30 September 1949
• Docket Number: No. 9859,9860.,9859
• Citation: 176 F.2d 441
• Parties: CONSUMERS PETROLEUM CO. v. CONSUMERS CO. (two cases).
• Court: U.S. Court of Appeals — Seventh Circuit

176 F.2d 441 (1949)

CONSUMERS PETROLEUM CO. v. CONSUMERS CO. (two cases).

Nos. 9859, 9860.

United States Court of Appeals Seventh Circuit.

July 19, 1949.

As Amended on Denial of Rehearing September 30, 1949.

Albert E. Jenner, Jr., Edward H. Hatton, Chicago, Ill., Harry G. Hershenson, Chicago, Ill., James B. McKeon, Chicago, Ill. (Hershenson & Hershenson, Poppenhusen, Johnston, Thompson & Raymond, Chicago, Ill., of counsel), for Consumers Petroleum Co.

Joseph B. Fleming, Carl S. Lloyd, Chicago, Ill., Lloyd M. Bowden, Chicago, Ill., Edward C. Caldwell, Chicago, Ill. and Kirkland, Fleming, Green, Martin & Ellis, Chicago, Ill. for Consumers Co.

Before MAJOR, Chief Judge, DUFFY, Circuit Judge, and LINDLEY, District Judge.

MAJOR, Chief Judge.

The controversy before us is the aftermath of a suit brought by Consumers Petroleum Company (plaintiff) against Consumers Company of Illinois (defendant) for unfair competition in the marketing of fuel oils in the Chicago metropolitan area. From a decree dismissing the complaint for want of equity, an appeal was taken to this court which, with one Judge dissenting, reversed the District Court "with directions to proceed in accordance with the views herein expressed." Consumers Petroleum Co. v. Consumers Co. of Illinois, 7 Cir., 169 F.2d 153, 164. A mandate issued pursuant to this opinion was filed in the court below on January 13, 1949. On March 3, 1949, that court entered a decree purportedly in conformity with the mandate and opinion of this court, which so far as presently material provides: "The defendant, Consumers Company, a Delaware corporation, its officers, agents, representatives, clerks, servants, workmen, salesmen, and employees be and they, each and all, are herewith and henceforth perpetually restrained and enjoined from using in any manner whatsoever the corporate name `Consumers Company' or the name `Consumers' or any similar or like names or derivative or abbreviation thereof, whether or not accompanied or coupled with other words or symbols or any other word or symbol, or mark deceptively similar, or any name, legend, or mark of which the name `Consumers' forms a part in marketing, selling, or offering for sale, advertising, vending, distributing, or merchandising fuel oil at retail in the City of Chicago and the Chicago metropolitan area."

From this decree both parties have appealed, the defendant in No. 9859, and the plaintiff in No. 9860.

The contention advanced on both appeals is that the decree is not in conformity with the mandate and opinion of this court. The primary issue raised by the defendant, which we shall first consider, is that the court erred in enjoining the defendant from the use of its corporate name in the sale and distribution of oil, the effect and purpose of which admittedly is "to put the Consumers Company out of the fuel oil business in Chicago." The court stated that it was imposing this drastic restraint upon the defendant against its better judgment and only because it was required to do so by the holding of this court. If the defendant's position be accepted, we are confronted with the further issue as to the scope of the injunction to which plaintiff is entitled.

From the argument which took place below and from the colloquy between the court and counsel, as well as the argument here, it appears that more confusion resulted from our opinion than was caused by defendant when it entered the fuel oil business. Without any thought of proclaiming it is a masterpiece or a model for clarity, we are convinced that it is not reasonably susceptible of the criticism to which it has been subjected. The opinion must speak for itself and what we have held, of course, is now binding not only on the court below but on this court as well. The most pertinent criticism is that we failed to distinguish between the trade name "Consumers" and the defendant's corporate name. This criticism cannot be overlooked because it goes to the heart of the instant controversy. Our asserted failure to make this distinction, so it appears, was the basic premise upon which the court concluded that it was required to enjoin the defendant from the use of its corporate name. The court below stated, "In the opinion the Court of Appeals uses the words `trade name' twenty-five times, and in all cases, as being synonymous with corporate name." Our reading of the opinion fails to reveal the situation thus discerned by the lower court and leads us to wonder whether it is this or that court which is confused and which has failed to distinguish between the trade name and the corporate name.

The opinion taken in its entirety plainly discloses, so we think, that the issue with which we were concerned and which we decided was that the defendant in 1938, when it commenced the sale of fuel oil under the trade name "Consumers," engaged in unfair competition. This was on the theory that plaintiff had previously appropriated and put to use such trade name. In the beginning we set forth the position of the respective parties and the issue for decision 169 F.2d 155. Relative to the plaintiff's position, the opinion states, "Further, it is claimed that the defendant subsequently appropriated the trade name `Consumers' in the sale and distribution of fuel oil and that as a result the public has been confused by such use, which constitutes unfair competition and resultant damages to plaintiff's business, good will and reputation." As to the defendant's position, we stated, "The defendant denies that it wrongfully appropriated the trade name `Consumers' in connection with the sale and distribution of fuel oil;...