Gum v. Gumakers of America
Citation | 136 F.2d 957 |
Decision Date | 30 June 1943 |
Docket Number | No. 8067.,8067. |
Parties | GUM, Inc., v. GUMAKERS OF AMERICA, Inc. |
Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
Harry Shapiro, of Philadelphia, Pa. (George A. Smith, of Philadelphia, Pa., on the brief), for appellant.
Matthew S. Biron, of Philadelphia, Pa. (Harry Price, of New York City, on the brief), for appellee.
Before MARIS, JONES, and GOODRICH, Circuit Judges.
The plaintiff, Gum, Inc., a Pennsylvania corporation, brought an action for unfair competition against the defendant, Gumakers of America, Inc., a Delaware corporation, in the District Court for the Eastern District of Pennsylvania. The case was tried to the court without a jury. From the judgment dismissing the complaint the plaintiff has appealed.
Bubble chewing gum is marketed by both the plaintiff and the defendant in the form of a roll or cylinder. The cylinder is wrapped in colored waxed paper with twisted extending ends. The plaintiff's cylinder of gum is approximately 3 inches long, about ½ inch in diameter and its package, as extended by the twisted ends, is 5¼ inches long. The defendant's cylinder of gum is ¼ inch longer than the plaintiff's, slightly smaller in diameter and its package is about ½ inch longer. Upon the plaintiff's product is printed in large block letters the trade name Blony and in small inconspicuous type the plaintiff's firm name Gum, Inc.; upon the defendant's product in correspondingly similar type the trade name Bubly and the defendant's firm name Gumakers of America, Inc., appear.
The plaintiff claims that the unfair competition arises by reason of the deceptive similarity between Bubly and Blony intentionally achieved by the defendant by means of combining shape, size, weight, wrapper color scheme, wrapped ends, company name and trade name. The point made by the plaintiff is that though each feature might have been copied legitimately the collocation of features results in unfair competition.
The district court found as a fact that there is a difference between the two products and that there is not such an identity and priority of use in the various features of the two products as would constitute unfair competition. The defendant takes the position that this court is bound to accept the trial judge's findings of fact since they are supported by the evidence.1 The plaintiff does not question the binding effect of the findings of fact. As we understand it, the plaintiff's contention is that, although the trial judge found that the two products were not identical and consequently dismissed the complaint, he erred in doing so because the proper test in unfair competition cases is not whether the competing product and the original product are identical but whether they are deceptively similar.2 The plaintiff argues that if the trial judge had looked at the exhibits of Blony and Bubly from the viewpoint of a purchaser having neither opportunity nor incentive for a side-by-side comparison of the two products rather than with the keen eye of one trained in analysis and detection and with the purpose of discovering differences he would have been compelled to conclude that the two products were deceptively similar.
Though the plaintiff may be right in its premises it does not follow that the complaint was improperly dismissed, for it remains to be determined whether the plaintiff has produced sufficient evidence of unfair competition to justify the court in issuing the injunction sought to restrain it.
Aside from the prohibition against infringing a patent, copyright or trade mark and except for the requirement, hereinafter discussed, that he must identify his product as his own, any one has the right to manufacture and sell a product similar or even identical in appearance to the original product with which it competes unless the original product has become associated in the public mind with its producer. In Flagg Mfg. Co. v. Holway, 1901, 178 Mass. 83, 59 N.E. 667, the defendant manufactured zithers which so closely resembled those made by the plaintiff in outline, arrangements of strings and other features that it was obviously an imitation. The court held that the defendant had a right to imitate the appearance of the plaintiff's zither. Chief Justice Holmes there said (178 Mass. at pages 90, 91, 59 N.E. at page 667):
In commenting upon this case Nims, a pioneer text writer on the subject of unfair competition, has this to say: Nims on Unfair Business Competition, p. 290.
The necessity in unfair competition cases for proof that the public desire is for a product made by the plaintiff in distinction to a desire for a product for which the plaintiff has created the demand was succinctly expressed by Judge Learned Hand in Crescent Tool Co. v. Kilborn & Bishop Co., 2 Cir., 1917, 247 F. 299. He said (247 F. at page 300): ...
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