Florence Mfg. Co. v. J.C. Dowd & Co.
| Decision Date | 11 April 1910 |
| Docket Number | 196. |
| Citation | 178 F. 73 |
| Parties | FLORENCE MFG. CO. v. J. C. DOWD & CO. |
| Court | U.S. Court of Appeals — Second Circuit |
A. Bell Malcomson, for appellee.
Before LACOMBE, COXE, and NOYES, Circuit Judges.
We agree with the Circuit Court in thinking that the word 'Keepclean,' as applied to tooth brushes, is descriptive merely and is therefore not the subject of a valid trade-mark. If the distinguishing feature of the brush which its owner desires to emphasize, is its capacity for keeping clean, he could hardly find any different words in which to convey his meaning.
It will probably be conceded that the adjective 'clean' cannot be appropriated as a trade-mark to designate a particular line of goods, no matter how free from dirt they may be. If they have the characteristic of retaining this condition for a longer period than other similar goods, it is plain that their owner cannot be permitted to pre-empt the description of this capacity to remain clean, or keep clean or stay clean. For this reason both parties were refused trade-marks under the act of 1905, the Patent Office holding that both 'Keepclean' and 'Sta-Kleen' were descriptive merely. It follows, therefore, that as the complainant has a perfect right to advertise the tendency of its brushes to keep clean, the defendants have an equal right to inform the public of the similar tendency of their brushes to stay clean, provided they do so fairly. Asphalt Co. v Standard Paint Co., 163 F. 977, 90 C.C.A. 195.
The question of unfair competition remains. The defendants argue that this cause of action has not been sustained for the following reasons:
First. When the defendants commenced the sale of the 'Sta-Kleen' tooth brushes, the complainant had not added a tooth brush to its series of toilet brushes. It is therefore, urged by the defendants that they had a right to use complainant's trade-name to designate a brush which the complainant did not make. They further maintain that there can be no unfair competition in the sale of an article in which the parties do not compete, and in no event can the complainant be damaged, because it lost no sales of tooth brushes.
Second. It is argued that there is no evidence that the defendants' goods have been accepted by innocent purchasers as the goods of the complainant.
We cannot resist the conclusion that the defendants take too narrow a view of the law as it relates to unfair competition. The law has a three-fold object: First, to protect the honest trader in the business which fairly belongs to him; second, to punish the dishonest trader who is taking his competitor's business away by unfair means; and, third, to protect the public from deception.
There are facts in the record upon which a plausible argument can be founded that the defendants deliberately intended to simulate the complainant's marks, boxes and labels for the purpose of securing a portion of its trade in brushes. It is, however, unnecessary to rest the decision upon controverted facts.
It is so easy for the honest business man, who wishes to sell his goods upon their merits, to select from the entire material universe, which is before him, symbols, marks and coverings which by no possibility can cause confusion between his goods and...
To continue reading
Request your trial
-
Philco Corporation v. Phillips Mfg. Co.
...v. National Candy Co., 315 U.S. 666, 62 S. Ct. 853, 86 L.Ed. 1103. (b) Kellogg Co. v. National Biscuit Co., supra; Florence Manufacturing Co. v. Dowd & Co., 2 Cir., 178 F. 73. (5) (a) Wisconsin Electric Co. v. Dumore Co., 6 Cir., 35 F.2d 555 (electric washing machines, other electrical hous......
-
Stix Products, Inc. v. United Merchants & Mfrs., Inc.
...9 L.Ed.2d 170 (1962); Harold F. Ritchie, Inc. v. Chesebrough-Pond's, Inc., 281 F.2d 755, 758 (2d Cir. 1960); Florence Mfg. Co. v. J. C. Dowd & Co., 178 F. 73, 75 (2d Cir. 1910); Atlantic Monthly Co. v. Frederick Ungar Publishing Co., 197 F.Supp. 524, 532 (S.D.N.Y.1961); National Biscuit Co.......
-
Harold F. Ritchie, Inc. v. Chesebrough-Pond's, Inc.
...cost and risk. In this regard the law today is much the same as it was fifty years ago, when this court said in Florence Mfg. Co. v. J. C. Dowd & Co., 2 Cir., 178 F. 73, 75: "It is so easy for the honest business man, who wishes to sell his goods upon their merits, to select from the entire......
-
Mushroom Makers, Inc. v. RG Barry Corp., 76 Civil 1589.
...953 (2 Cir. 1954). 38 See Decca Records v. Musicor Records, 314 F.Supp. 145, 147-48 (S.D.N.Y.1970) (quoting Florence Mfg. Co. v. J. C. Dowd & Co., 178 F. 73, 75 (2d Cir. 1910)). 39 Kiki Undies Corp. v. Promenade Hosiery Mills, Inc., 411 F.2d 1097, 1101 (2d Cir. 1969), cert. denied, 396 U.S.......
-
Thomas R. Lee, Glenn L. Christensen & Eric D. Derosia, Trademarks, Consumer Psychology, and the Sophisticated Consumer
...the basis of the ?selling power? or ?differential distinctiveness? of a trademark. Id. at 2047-50. 28 Florence Mfg. Co. v. J.C. Dowd & Co. 178 F. 73, 75 (2d Cir. 1910). 29 Pikle-Rite Co. v. Chi. Pickle Co., 171 F. Supp. 671, 676 (N.D. Ill. 1959). 30 Trademark law treatises provide a general......