France Milling Co. v. Washburn-Crosby Co.
| Decision Date | 06 April 1925 |
| Docket Number | No. 311.,311. |
| Citation | 7 F.2d 304 |
| Parties | FRANCE MILLING CO., Inc., v. WASHBURN-CROSBY CO., Inc. |
| Court | U.S. Court of Appeals — Second Circuit |
Frank A. Whitely, of Minneapolis, Minn., Edward S. Rogers, of Chicago, Ill., and Harry D. Nims, of New York City, for appellant.
Darby & Darby, of New York City (Samuel E. Darby, Jr., of New York City, of counsel), for appellee.
Before ROGERS, HOUGH, and MANTON, Circuit Judges.
HOUGH, Circuit Judge (after stating the facts as above).
There was a good deal said at bar about fraud and wrongdoing, which we lay entirely aside. The reason for France's assumption of Gold Medal in 1905 was pardonable pride in his prize; there was no intent on his part to trade on Washburn's fame, nor is there any evidence that he ever did so trade.
We likewise lay aside all arguments based on registration of marks; these litigants must both stand on what are usually (and not very accurately) called their "common-law" rights, aided by such equities derived from conduct and lapse of time as may serve them.
France and Washburn, now that the latter has gone into the business of selling prepared flours, are competitors, something they never were before 1924. It may be true that a competent cook can mix Washburn's Gold Medal flour with corn meal, leaven and appetizing flavors, and make perhaps the best "pancakes"; but the parties hereto do not make nor sell cakes — they sell the cook something out of which she can evolve the edible product without thought or much labor. This something Washburn neither made nor sold before 1924; France did and had for 20 years.
Thus at the time this suit began the situation in one view was exactly "the ordinary case of parties competing under the same mark, and it is correct to say that prior appropriation settles the question" between them. Hanover, etc., Co. v. Metcalf, 240 U. S. 403, 36 S. Ct. 357, 60 L. Ed. 713.
This ruling by Pitney, J., may be amplified by inquiring whether the parties at bar are now competing under the same mark in the same goods. They evidently are — in "pancake flour"; wherefore the next and vital inquiry is whether "straight" wheat flour, and "prepared flours" are the same goods or the same "class of commodities."
This is a question of fact; there is no rule of law applicable except that legal principle which underlies both the allied doctrines of trade-marks and unfair competition, viz.: that any honest man is entitled to have the good will of his business protected, by protecting the means whereby the public has come to distinguish and recognize the complainant's product.
It follows that, if one asks whether in 1923 Washburn had any business in pancake or buckwheat flours to be protected, the answer is "No," while it is emphatically "Yes," if the query be put as to France.
If then so many years of building up trade in "straight" wheat Gold Medal flour, had produced no business in prepared flours, how can it be said that the two articles belong to the same class of commodities? Classification of any commercial article depends far more on commercial custom than upon the inherent nature of the product. Dog biscuit and pilot bread are closely allied in physical origin, and so are guncotton and calico, but in commercial classification they are poles apart. The difference between "straight" and prepared flours is not so great as in the illustration given, but that as commercial commodities they are different is in our opinion plainly shown by the exhibition of business methods given by the affidavits; and that such was Washburn's own opinion in 1923 we have pointed out above.
To take another view of the matter, the degree or exclusiveness of appropriation accorded to the originator of a trade-name often varies with the kind of name he originates. If the name or mark be truly arbitrary, strange, and fanciful, it is...
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