General Baking Co. v. Goldblatt Bros.
| Decision Date | 18 June 1937 |
| Docket Number | No. 6133.,6133. |
| Parties | GENERAL BAKING CO. v. GOLDBLATT BROS., Inc. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Lee J. Gary, of Chicago, Ill. (F. P. Warfield and T. R. V. Fike, both of New York City, of counsel), for appellant.
Jack N. Pritzker and Stanford Clinton, both of Chicago, Ill., for appellee.
Before EVANS and MAJOR, Circuit Judges, and LINDLEY, District Judge.
This is an appeal from a decree dismissing for want of equity a bill charging appellee with infringement of appellant's registered trade-mark.
Appellant in 1915 adopted and appropriated the word "Bond" as its trade-mark applied to bread and bakery products. This and subsequent applications passed to registration and the resulting trade-marks are now in full force. During the years between 1915 and 1935 appellant has used the mark on four billion loaves of bread sold in twenty-five states. It has sold in Illinois upwards of five million loaves within the territory within a radius of fifty miles of St. Louis. Appellant learned in September, 1935, that appellee was selling "Goldblatt's Bond" bread and thereupon made written demand upon appellee to discontinue the use of the word "Bond." Upon refusal the suit was begun.
Appellee operates six large department stores in Chicago, one in Joliet, one in Hammond, and one in Gary. It first used the trade-mark "Goldblatt's Bond" in 1931 on razor blades, shaving cream, and cigars. Thereafter it extended the use to some 300 items of merchandise sold by its stores. It does not sell outside the territory within a radius of fifty miles of Chicago. The parties are not now nor have they ever been in actual market competition. Appellant is not and never has been selling "Bond" bread in Chicago or in any market in competition with appellee. Its officers testified that the company desired to sell in Chicago but that no steps had been taken to initiate or develop its business in any section where appellee's bread is sold. Appellant's nearest market to appellee's stores in Indiana is Tipton and its market in Illinois nearest to Chicago is Alton near St. Louis.
The wrappers which appellant uses for its "Bond" bread are different in material, design, color, lettering, and descriptive language from those employed by appellee for its "Goldblatt's Bond" bread.
The court concluded that the trademarks "Bond" and "Goldblatt's Bond" are not confusingly similar; that there would be no probability of confusion by purchasers if breads bearing those two marks were concurrently sold in the same markets; that the localities in which appellee sells "Goldblatt's Bond" bread in Illinois and Indiana are wholly separate and remote from the markets in Illinois and in Indiana in which appellant sells "Bond" bread.
Appellant contends that the court erred in finding that the trade-marks "Bond" and "Goldblatt's Bond" are not confusingly similar and in holding that appellant has acquired no rights to enforce its trademark in the territory where appellee sells its bread.
The purpose of a trade-mark is to identify the business in connection with which it is used. It will be protected only when used in connection with a business, for trade-marks and the rights to their exclusive use are property rights only in the sense that the right to one's trade and the good will that...
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