Continental Distilling Sales Co. v. Brancato

• Decision Date: 10 March 1949
• Docket Number: 13769.,No. 13768,13768
• Citation: 173 F.2d 296
• Parties: CONTINENTAL DISTILLING SALES CO. v. BRANCATO. CONTINENTAL DISTILLING CORPORATION v. BRANCATO.
• Court: U.S. Court of Appeals — Eighth Circuit

173 F.2d 296 (1949)

CONTINENTAL DISTILLING SALES CO. v. BRANCATO.

CONTINENTAL DISTILLING CORPORATION v. BRANCATO.

Nos. 13768, 13769.

United States Court of Appeals Eighth Circuit.

March 10, 1949.

Leonard L. Kalisch, of Philadelphia, Pa. (Douglas Stripp, and Watson, Ess, Barnett, Whittaker & Marshall, all of Kansas City, Mo., on the brief), for appellant.

William G. Boatright, of Kansas City, Mo., for appellee.

Before SANBORN, WOODROUGH, and THOMAS, Circuit Judges.

WOODROUGH, Circuit Judge.

These cases were consolidated and tried together in the District court and the appeals are upon a single record. There is identity of interest in both appellants, Continental Distilling Corporation and Continental Distilling Sales Company, which are affiliated companies, one being a producing and the other a selling company of the same line of alcoholic beverages, both complaining of alleged trade name infringement and unfair competition by the appellee, Brancato, a wholesale liquor dealer in Kansas City, Missouri, in respect to the conjunctive use by him of the word "Continental" in the trade name under which he carries on his liquor business. The federal jurisdiction resulted from diversity of citizenship. On the trial of the cases the court was of the opinion that the conjunctive use by the appellee of the word "Continental" in his trade name was not likely to and would not probably cause confusion to arise in the minds of the buying public nor result in Brancato's trading on the reputation and good will of appellants, and by the final judgment appellants were denied injunctive or other relief prayed for by them and they appeal.

It appears from the record that the appellants, wholly owned subsidiaries of Publicker Industries, Inc., are now and (except during prohibition) have for a great many years been engaged in the manufacture and the sale, respectively, of alcoholic beverages which are manufactured by the distilling corporation and distributed by the sales company with the name "Continental" appearing on every label or bottle of the goods which are known to wholesalers and retailers throughout the country as the "Continental Line", or as products of "Continental" or "House of Continental." Since repeal of prohibition the distilling corporation has spent millions of dollars in advertising its name and its products and has spent many thousands of dollars for that purpose in Missouri, including Kansas City, and so has built up a good will of great value in the name "Continental." Not only has every bottle of the beverages conjunctively carried the name "Continental" but much of the advertising has featured and stressed the word "Continental" standing in bold type by itself in such a way as to effectively impress it on the mind in connection with appellants' business and their line of alcoholic beverages. It is undisputed in the record that the Continental Distilling Corporation is one of the five largest producers of alcoholic beverages in the United States.

The appellee Brancato operated a package liquor store in Kansas City, Missouri, from about 1939 to 1942, and on February 16, 1944, he started a wholesale liquor business at 1604 Grand Avenue in that city. He took the trade name "Continental Wine and Liquor Company", caused it to be registered under the Missouri Fictitious Name Act and has been carrying on a wholesale liquor business in that name ever since. On one occasion a Kansas City wine company bottled some 1800 cases of wine for Brancato labelled "Bottled by Pioneer Wine Co. for Continental Wine and Liquor", but generally he buys and sells beverages already bottled with the name of some distiller thereon. He sells to the same trade in Kansas City area to which the appellant sales company sells, including saloons, hotels, bars and other purveyors of entertainment.

It appears both as to the appellant distilling company's products and those of the other distillers whose products Brancato sells that each particular beverage is distributed under a brand name. Appellants' line includes "Dixie Belle" gin, "Philadelphia" whiskey, "Old Hickory" and many other fancifully named beverages, and much of the advertisement is to familiarize the public with and induce consumption of the named brands. Those who consume the...