Hills Bros. Coffee, Inc. v. Hills Supermarkets, Inc.
| Decision Date | 09 June 1970 |
| Docket Number | Docket 34765.,No. 817,817 |
| Citation | 428 F.2d 379 |
| Parties | HILLS BROS. COFFEE, INC., Plaintiff-Appellant, v. HILLS SUPERMARKETS, INC., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
David H. T. Kane, New York City (Kane, Dalsimer, Kane, Sullivan & Kurucz, New York City), (Townsend & Townsend, San Francisco, Cal., of counsel), for plaintiff-appellant.
Marshall C. Berger, New York City (Weil, Gotshal & Manges, New York City, Edward C. Wallace, New York City, of counsel), for defendant-appellee.
Before LUMBARD, Chief Judge, and SMITH and KAUFMAN, Circuit Judges.
Hills Bros. Coffee, Inc. hereinafter HB appeals that portion of an order by the United States District Court for the Southern District of New York, Harold R. Tyler, Judge, 310 F.Supp. 1046, which denied a preliminary injunction against Hills Supermarkets, Inc.'s hereinafter HSI proposed use of HILLS on coffee and coffee related products. The only temporary relief granted by the order was a preliminary injunction against HSI's use of "shelf-talkers" (tags) containing the handprinted legend Hills Coffee on the outer edge of the shelf divider between HB's coffee and HSI's coffee; all other requests for temporary injunction and summary judgment in this trademark infringement suit brought by HB were denied. We find error in the denial of the preliminary injunction in regard to HSI's proposed use of HILLS on its coffee.
To obtain a preliminary injunction, a plaintiff in a trademark infringement suit must show probability of success on trial and irreparable damage resulting from a denial of the injunction. W. E. Bassett Co. v. Revlon, Inc., 354 F.2d 868 (2d Cir. 1966). In order for HB to prove infringement of its trademarks at trial, it must show that the proposed HSI mark on the coffee is likely to cause confusion, cause mistake or deceive; see Miss Universe, Inc. v. Patricelli, 408 F.2d 506 (2d Cir. 1969); Maternally Yours, Inc. v. Your Maternity Shop, Inc., 234 F.2d 538 (2d Cir. 1956); to the degree that the determination of likelihood of confusion rests upon a comparison of the marks as here, however, the appellate court is in as good a position as the trial judge to decide the issue. Miss Universe, Inc. v. Patricelli, supra. While we ordinarily phrase the rule on review of denial of preliminary injunction as calling for reversal only for abuse of discretion, see e. g. Packard Instrument Co. v. ANS et al., 416 F.2d 943 (2d Cir. 1969), where the denial rests on a finding (confusion of marks) which we may determine on an equal basis with the trial judge, we need not uphold the denial. On reviewing the documentary evidence and...
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