Downey v. General Foods Corp.

• Decision Date: 06 July 1972
• Citation: 286 N.E.2d 257,334 N.Y.S.2d 874,31 N.Y.2d 56
• Parties: , 286 N.E.2d 257, 175 U.S.P.Q. 374 John T. DOWNEY, Respondent-Appellant, v. GENERAL FOODS CORPORATION, Appellant-Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 874

334 N.Y.S.2d 874

31 N.Y.2d 56, 286 N.E.2d 257, 175

U.S.P.Q. 374

John T. DOWNEY, Respondent-Appellant, v. GENERAL FOODS CORPORATION, Appellant-Respondent.

Court of Appeals of New York.

July 6, 1972.

Carleton G. Eldridge, Jr., and John M. Keene, III, New York City, for appellant-respondent.

James P. Malone, Mineola, for respondent-appellant.

FULD, Chief Judge.

The plaintiff, an airline pilot, brought this action against the defendant General Foods Corporation to recover damages for the alleged misappropriation of an idea. ¹ It is his claim that he suggested that the defendant's own gelatin product, 'Jell-O,' be named 'Wiggley' or a variation of that word, including 'Mr. Wiggle,' and that the product be directed towards the children's market; that, although the defendant disclaimed interest in the suggestion, it later offered its product for sale under the name 'Mr. Wiggle.' The defendant urges--by way of affirmative defense--that the plaintiff's 'alleged 'product concept and name' was independently created and developed' by it. The plaintiff moved for partial summary judgment 'on the question of liability' on 5 of its 14 causes of action and the defendant cross-moved for summary judgment dismissing the complaint. The court at Special Term denied both motions, and the Appellate Division affirmed, 37 A.D.2d 250, 323 N.Y.S.2d 578, granting leave to appeal to this court on a certified question.

The plaintiff relies chiefly on correspondence between himself and the defendant, or, more precisely, on letters over the signature of a Miss Dunham, vice-president in charge of one of its departments. On February 15, 1965, the plaintiff wrote to the defendant, stating that he had an 'excellent idea to increase the sale of your product JELL-O * * * making it available for children'. Several days later, the defendant sent the plaintiff an 'Idea Submittal Form' (ISF) which included a form letter and a space for explaining the idea. ² In that form, the plaintiff suggested, in essence, that the produce 'be packaged & distributed to children under the name 'WIG-L-E' (meaning wiggly or wiggley) or 'WIGGLE-E' or 'WIGGLE-EEE' or 'WIGLEY. " He explained that, although his children did not 'get especially excited about the Name JELL-O, or wish to eat it', when referred to by that name, 'the kids really took to it fast' when his wife 'called it 'wiggle-y," noting that they then 'associate(d) the name to the 'wiggleing' dessert.' Although this is the only recorded proof of his idea, the plaintiff maintains that he sent Miss Dunham two handwritten letters in which he set forth other variations of 'Wiggiley,' including 'Mr. Wiggley, Wiggle, Wiggle-e.' ³

A letter, dated March 8, 1965, over the signature of Miss Dunham, acknowledged the submission of the ISF and informed the plaintiff that it had no interest in promoting his suggestion. However, in July, the defendant introduced into the market a Jell-O product which it called 'Mr. Wiggle.' The plaintiff instituted the present action some months later. In addition to general denials, the answer contains several affirmative defenses, one of which, as indicated above, recites that the defendant independently created the product's concept and name before the plaintiff's submission to it.

In support of its position, the defendant pointed to depositions taken by the plaintiff from its employees and from employees of Young & Rubicam, the firm which did its advertising. From these it appears that the defendant first began work on a children's gelatin product in May, 1965--three months after the plaintiff had submitted his suggestion--in response to a threat by Pillsbury Company to enter the children's market with a product named 'Jiggly.' Those employees of the defendant in charge of the project enlisted the aid of Young & Rubicam which, solely on its own initiative, 'came up with the name 'Mr. Wiggle ". In point of fact, Miss Dunham swore in her deposition that she had had no knowledge whatever of the plaintiff's idea until late in 1966, shortly before commencement of his suit; that ideas submitted by the general public were kept in a file by an assistant of hers 'under lock and key'; and that no one from any other of the defendant's departments ever asked to research those files. The assistant, who had alone handled the correspondence with the plaintiff over Miss Dunham's signature--reproduced by means of a signature duplicating machine--deposed that she had no contact whatsoever with Young & Rubicam and had never discussed the name 'Wiggle' or 'Mr. Wiggle' with any one from that firm.

In addition to the depositions of its employees and the employees of its advertising agency, the defendant submitted documentary proof of its prior use of some form of the word 'wiggle' in connection with its endeavor to sell Jell-O to children. Thus, it submitted (1) a copy of a report which Young & Rubicam furnished it in June of 1959 proposing 'an advertising program directed at children as a means of securing additional sales volume'; (2) a copy of a single dimensional reproduction of a television commercial, prepared in 1959 and used thereafter by the defendant in national and local television broadcasts, which contained the phrase, 'ALL THAT WIGGLES IS NOT JELL-O'; and (3) a copy of a newspaper advertisement that appeared in 1960, depicting an Indian 'squaw' puppet and her 'papoose' preparing Jell-O--the 'top favorite in every American tepee'--and suggesting to mothers that they '(m)ake a wigglewam of Jell-O for your tribe tonight!'

The critical issue in this case turns on whether the idea suggested by the plaintiff was original or novel. An idea may be a property right. But, when one submits an idea to another, no promise to pay for its use may be implied, and no asserted agreement enforced, if the elements of novelty and originality are absent, since the property right in an idea is based upon these two elements. (See Soule v. Bon Ami Co., 201...