Gehl v. Hebe Co.
| Decision Date | 20 July 1921 |
| Docket Number | 2900. |
| Citation | 276 F. 271 |
| Parties | GEHL v. HEBE CO. |
| Court | U.S. Court of Appeals — Seventh Circuit |
C. P Goepel, of New York City, for appellee.
Before ALSCHULER, EVANS and PAGE, Circuit Judges.
The appeal is from a decree finding infringement by appellant of appellee's trade-mark. The Sheboygan Evaporated Mild Company in 1915 registered the trade-mark 'Hebe' for 'a mild product evaporated.' January, 1916, the trade-mark and business was assigned to the Pacific Coast Condensed Milk Company, and in May, 1918, there was an assignment to appellee by the Pacific Coast Condensed Milk Company under its changed name of Carnation Milk Products Company. In 1915, and perhaps earlier, the milk product which is a compound of skimmed milk and vegetable fats, was put upon the market under the trade-mark 'Hebe,' sales of which have each succeeding year largely increased having been advertised extensively and at large expense, so that during the time of the alleged infringement the trade-mark was of considerable value.
Appellant had long experience in manufacturing evaporated milks and in 1917 began to make and sell a milk compound substantially like that sold under the name of 'Hebe.' He first called it 'Carolene,' but for certain business reasons abandoned that name and sought another one, employing others to assist him in the selection. He knew of 'Hebe,' since that had become the commercially leading brand for a milk compound, being the only one which had been widely advertised. While casting about for a name he sold and delivered to jobbers in August, 1919, 20,000 cases unbranded, but somewhat later he fixed upon the name 'Meje,' and sent out labels bearing that name, which were attached to the unbranded packages.
The record is singularly free from proof of unfair competition and trade practice, beyond the mere fact of the resemblance of the two names. There is no contention of simulation of labels or the employment by appellant of improper means to secure trade aside from the matter of these names.
A question of similarity of trade-names as applied to a particular product must of necessity be largely a matter of impression. From absolute copy of a name to one which is radically and essentially different there are names innumerable, with varying degrees and shades of difference and it would be impossible to lay down any general line of cleavage between infringing and noninfringing names. While the mind may readily conceive many names other than this which would more nearly approximate that of 'Hebe,' we are of the impression that 'Meje' as applied to the same product is an approximation sufficiently close to be deemed an infringement. The two vowels are the same in both, and most persons would pronounce both of these long, accenting the first syllable of each word. The interest of the average consumer in either of the brands is probably not such that he would charge his mind with the precise form and sound of the word. The general form and sound of the words, having marked similarity, would strongly suggest the likelihood of confusion. Although there was here no evidence of actual confusion on the part of customers, this is not easily available, nor indeed necessary where the words themselves suggest it.
There was evidence to show how...
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