Hospital Liquids v. Sherman, Civil Action No. 1343.
| Decision Date | 28 March 1941 |
| Docket Number | Civil Action No. 1343. |
| Citation | 38 F. Supp. 828 |
| Parties | HOSPITAL LIQUIDS, Inc., v. G. H. SHERMAN, M. D. Inc. |
| Court | U.S. District Court — Western District of Michigan |
James R. McKnight, of Chicago, Ill., and John H. Flancher, of Detroit, Mich., for plaintiff.
Whittemore, Hulbert & Belknap and John S. Murray, all of Detroit, Mich., for defendant.
Plaintiff, Hospital Liquids, Inc., of Chicago, Illinois, filed its complaint against the defendant, G. H. Sherman, M. D., Inc., of Detroit, Michigan, alleging acts of unfair competition.
The complaint specifically alleges that plaintiff has a unique dispensing cap of a new, different and distinct size which fits plaintiff's bottles, containing glucose and dextrose solutions, so that when the cap is used with a bottle, one knows that the bottle contains plaintiff's product; that the public has acquiesced in this new, different and distinct size of dispensing cap and cooperating screw threads on the bottle as denoting plaintiff's product; that defendant makes containers that fit plaintiff's caps and could be palmed off as plaintiff's container and solution; that defendant obtained plaintiff's containers and then constructed its containers to fit plaintiff's caps, so that it might palm off its products as those of plaintiff's; that defendant's container and solutions are inferior in quality and are sold at greatly reduced prices, aggravating the unfair competition; and that defendant's containers create confusion and cause purchasers to buy defendant's products as plaintiff's products, and further that defendant's salesmen are advising customers that defendant's products are of plaintiff's manufacture.
Defendant, in its answer, denies each and every material allegation as set forth in the complaint.
In support of its case, plaintiff introduced the depositions of J. E. B. Swabacker and Dr. Alfred G. Nast, treasurer and president, respectively, of plaintiff company. Defendant, in its behalf, called as witnesses Jesse D. Laird, supervisor of specifications of the Owen-Illinois Glass Company, and Arthur G. Sherman, president of the defendant company.
Plaintiff has not sustained its burden of proof. No admissible testimony was offered to prove confusion in the sale of the two products or that defendant had palmed off its products as those of plaintiff. No testimony was offered to prove that defendant had copied plaintiff's containers. On the other hand, testimony of the witness Sherman was to the effect that defendant's containers were designed by an artist at its plant in an effort to avoid the contours of all other containers for the same...
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...165 F.Supp. 747, 757; Food Fair Stores v. Square Deal Market Co., D.C.D.C.1952, 109 F.Supp. 637, 638; Hospital Liquids, Inc. v. G. H. Sherman, M.D., Inc., D.C.E.D.Mich.1941, 38 F.Supp. 828; De Long Hook & Eye Co. v. Hump Hairpin Mfg. Co., 1921, 297 Ill. 359, 130 N.E. 765, 769; Silbert v. Ke......