Fawcett Publications v. Bronze Publications
| Decision Date | 03 June 1949 |
| Docket Number | No. 12478.,12478. |
| Citation | 173 F.2d 778 |
| Parties | FAWCETT PUBLICATIONS, Inc. v. BRONZE PUBLICATIONS, Inc. et al. |
| Court | U.S. Court of Appeals — Fifth Circuit |
W. O. Mehrtens, of Miami, Fla., for appellant.
No appearance for appellees.
Before SIBLEY, McCORD, and WALLER, Circuit Judges.
Rehearing Denied June 3, 1949. See 174 F.2d 646.
This suit was brought by Fawcett Publications, Inc., a Delaware Corporation, against Bronze Publications, Inc., a Florida Corporation, and Sam B. Solomon, defendants, for unfair competition and alleged infringement of a registered trade mark belonging to plaintiff, known as "True Confessions".
The complaint alleges that plaintiff and its founder and predecessor have continuously, since the year 1922, been engaged in publishing, distributing and selling magazines, one of plaintiff's most popular publications being a monthly magazine called "True Confessions"; that since it was incorporated in 1924 plaintiff has been the owner of the trade mark, "True Confessions", and has used same to designate its monthly publication almost continuously since that time; that through industry and the expenditure of large sums of money in advertising, plaintiff has built up a valuable and successful publishing business and created much good will; that one of its most valued assets is its "True Confessions" magazine, which has through many years received a wide publication and enjoyed a constantly increasing circulation throughout the United States and foreign countries; that one of the principal channels for the distribution and sale of this magazine is through newsdealers and their news stands throughout this country and elsewhere, and that this magazine and other publications are displayed and sold from these news stands and racks by news dealers who make them available to public view and inspection. It is then alleged that the word "Confessions" has been so prominently displayed as the dominant feature of the title and trade mark of plaintiff's magazine that it has come to be recognized by the trade and public through many years as identifying the origin and genuineness of plaintiff's publication, "True Confessions"; that defendants, with intent to benefit from the reputation and good will rightfully accruing to plaintiff's magazine, and to profit unfairly by appropriating plaintiff's name and trade mark to their own use and thereby divert a part of the demand for plaintiff's magazine to their publication, are publishing a similar magazine entitled "Bronze Confessions", whereon the word "Confessions" is prominently featured on the front cover and the contents page, and wherein defendants have imitated plaintiff's publication, to its damage. Plaintiff prays for an injunction against the further publication and sale of defendants' magazine, and against the alleged infringement of its trade mark and unfair competition resulting from the use of the word, "Confessions", as exhibited and printed thereon.
Defendants, in substance, answered that (1) the word, "Confessions" is a mere descriptive word, and plaintiff could acquire no exclusive right to its use as a trade mark; (2) there could be no infringement or unfair competition because of the use of the name "Bronze", as opposed to "True", in connection with the word "Confessions", and that the general appearance and text of the two magazines, as well as the type of illustrations and stories contained therein, were so different as to render them clearly distinguishable from each other, and to make any deception or confusion of the public from the sale of both magazines practically impossible; (3) defendants' magazine, "Bronze Confessions", is designed and published principally to appeal to Negro buyers, as Negro writers, subjects and illustrations are used exclusively therein, whereas plaintiff's publication is designed and published principally to appeal to white people; and (4) that trade mark registrations had been issued for several magazines other than defendants' publication, in which the word "Confessions" was contained in the title of each, and that the United States Patent Office had granted no exclusive use of the word "Confessions" to the plaintiff or any one else.
Upon the filing of the answer, plaintiff moved for a summary judgment under Rule 56, Federal Rules of Civil Procedure, 28 U.S.C.A., which motion was denied by the trial court. Plaintiff thereafter declined to amend its complaint with leave of the court, whereupon judgment was entered dismissing the suit for failure to state a claim upon which relief...
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North American Airlines v. Civil Aeronautics Board
...certiorari denied, 1943, 320 U.S. 758, 64 S.Ct. 65, 88 L.Ed. 452 ("Chateau Martin" and "Chateau Montay"); Fawcett Publications v. Bronze Publications, 5 Cir., 1949, 173 F.2d 778, certiorari denied, 1949, 338 U.S. 869, 70 S.Ct. 144, 94 L. Ed. 533 ("True Confessions" and "Bronze Confessions")......
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Peter Pan Foundations v. Beau-Bra Foundations
...does not establish that the word is a dominant feature thereof. General Baking Co. v. Gorman, supra; Fawcett Publications v. Bronze Publications, Inc., 5 Cir., 173 F.2d 778, rehearing denied 5 Cir., 174 F.2d 646, certiorari denied 338 U.S. 869, 70 S.Ct. 144, 94 L.Ed. 533. Even assuming that......