Keller Products v. Rubber Linings Corp.
| Citation | 213 F.2d 382 |
| Decision Date | 12 May 1954 |
| Docket Number | No. 11067.,11067. |
| Parties | KELLER PRODUCTS, Inc. v. RUBBER LININGS CORP. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Clarence E. Threedy, Edward C. Threedy, Ben Copple, Chicago, Ill., for appellant.
Lloyd C. Root, Marzall, Johnson, Cook & Root, Chicago, Ill., Oscar C. Limbach, Cleveland, Ohio, for appellee.
Before DUFFY, LINDLEY and SCHNACKENBERG, Circuit Judges.
This is an action for trade-mark infringement and unfair competition. The trial court found the issues favorable to plaintiff, entered judgment accordingly, and awarded to plaintiff $1,500 as punitive damages, plus $1,500 attorney fees.
Plaintiff charged defendant with infringement of its trade-mark "TubKove," registered on the Supplemental Register in the U. S. Patent Office, bearing Registration No. 529,264, dated August 15, 1950. The complaint also charged infringement of a trade-mark registered by plaintiff, being a design consisting of a circular solid colored background with a contrasting angular figure thereon, registered on the Principal Register in the U. S. Patent Office, bearing Registration No. 553,206, dated January 8, 1952. Each registration showed that the trade-mark was used for flexible sealing strips.
As early as 1948 plaintiff engaged in the manufacture and sale of flexible sealing strips made of white, rubberlike material and adapted to be cemented at the juncture of intersecting surfaces, particularly where wall and bathtub surfaces join. The strips are used to seal the crack or space between such surfaces. The strips are sold to the public as part of a kit made up of a 15 ft. length of sealing strip, a bottle of cement, a bottle of solvent, and a brush applicator. The strips are in a flat, ribbonlike form, put up in an elongated roll. The strips have a characteristic feature, in that when applied at a right angle to wall and tub, a triangular shaped recess opens on the side adjacent to the porcelain of the tub and the wall. The cement, by working into and adhering to the recesses of the strip, as well as to the bathtub and wall surfaces, causes the strip to remain firmly in place in spite of the presence of moisture, steam and soap.
Plaintiff adopted and used a distinctive package for the marketing of its sealing strip. On the front and on each side of its package, "Tub-Kove" appeared in large white letters. On the front of the package and immediately under "Tub-Kove," appeared "Sealing Strip" in white letters, while on the sides, the words "Sealing Strip" appeared in black letters immediately following "Tub-Kove." Underneath part of the word "Tub-Kove" as it appears on the front of the package, and immediately adjacent thereto, appeared the design, consisting of a black circular background, with a white angular figure thereon, which figure was a representation of a cross-section view of plaintiff's sealing strip as applied. On the face of the package an outline of two bathtubs also appeared, and the places where the sealing strips should be applied were indicated by heavy white lines.
Prior to the commencement of this suit plaintiff had spent in excess of $42,000 in advertising its product, and in addition had received considerable free advertising in trade magazines and papers. Plaintiff's product was well received by the public. Plaintiff sold more than 372,000 of its packaged kits, including 75,000 which were sold to the retail trade by Sears-Roebuck & Company under its own trade-mark, "Harmony House."
In 1952 defendant started marketing a sealing strip of a material and color similar to that used in plaintiff's strip. It adopted a package of the same shape and dimensions as that used by plaintiff. The words "Tub Cove" in large black letters appeared on the front and both sides of defendant's package. The words "Seal Strip" in smaller black letters appeared either immediately thereunder or following the words "Tub Cove." Defendant also used on the front of its package a circular design with a solid dark blue background, on which appeared an angular figure which represented a cross-section of a sealing strip as applied, with the recess resembling very closely that in plaintiff's strip but not being a truthful representation of a cross-section of the strip as manufactured and sold by defendant. On the front of the package an outline of two bathtubs also appeared, and the places where the sealing strips should be applied were indicated by heavy black lines. Defendant's package also enclosed a bottle of cement, a bottle of solvent and a brush applicator, in addition to a 15 ft. strip of its sealing strip, in an elongated roll.
The colors of plaintiff's and defendant's packages were not similar. Approximately one-third of the top of plaintiff's package was reddish orange in color, the other portion being black and white in about equal amounts. Over one-half of both sides of plaintiff's package was white, and all printing on the sides was in black, except the words "Tub-Kove" which were in white letters. The predominating color of defendant's package was maize-yellow, the other color being dark blue. A scalloped white line extending entirely around the package separated the yellow and blue portions. It is apparent that the colors used in the respective packages would not be the basis of customer confusion.
On the rear side of plaintiff's package, on a black background, "Directions for Applying Cove Sealing Strip" appeared in white letters, the instructions being contained in 7 paragraphs. In Paragraph 5 appears, "For the best fit in sharp corners, follow the simple mitering steps below." Two designs, labeled "A" and "B," followed. On defendant's package the instructions printed in black on a yellow background are almost identical to those on plaintiff's package. The fifth paragraph provides, "For the best fit in sharp corners, follow the simple mitering steps below," followed by two designs labeled "A" and "B,' same being very similar to those appearing on plaintiff's package. On either end of plaintiff's package its corporate name and address appear printed in black letters on a white background. On defendant's package its corporate name and address likewise appear printed in black letters on a yellow background.
The district court found that while defendant's package is not identical to that of plaintiff, when viewed in their entirety their similarity, and defendant's use of the dominant features of plaintiff's package, are immediately apparent. The court observed, "Except to the very careful observer, the plaintiff's and defendant's packages resemble each other as much as do the Gold Dust Twins." The court found neither of plaintiff's marks to be descriptive, but also found that they had acquired a secondary meaning. The court further found that there had been confusion as to the marks in the past, and that there is a likelihood of confusion in the future. The court concluded that the words "Tub-Kove" constitute a valid trade-mark as applied to flexible sealing strips such as those manufactured by plaintiff; also that the angular design against a circular background constituted a valid trade-mark as applied to the same products. The court concluded that plaintiff's trade-mark registrations are valid, and that the marks were infringed by defendant, and ordered that the further use thereof by defendant be enjoined. The trial court also sustained plaintiff's charge of unfair competition.
Defendant urges that the term "Tub-Kove" is descriptive and that no secondary meaning was proved. Defendant also argues that due to the differences in dress and color between plaintiff's and defendant's packages, there was no reasonable probability of confusion. Defendant also points out that on the two ends of its package its corporate name and address prominently appear.
We consider first the alleged invalidity of plaintiff's trade-mark "Tub-Kove," Registration No. 529,264. Is it descriptive as applied to sealing strips? "Tub" describes a tub, so we direct our attention to "Kove."
"Cove" is a well recognized English word having several meanings, one of which is given by Webster's New International Dictionary, 2d Ed., Unabridged, as "a concave molding"; also "a member whose section is a concave curve"; also, as a verb, "to arch over; to build in a hollow concave form." A "coved ceiling" is defined as "a ceiling the part of which next to the wall is constructed in a cove." Century New Dictionary and Encyclopedia gives as a definition, "Any kind of a concave molding; the hollow of a vault," and a cove ceiling as "a ceiling formed in a coved or arched manner at its junction with the side walls." Witnesses experienced in the art explained that there are floor cove strips, wall cove strips, ceiling cove strips, etc. In its directions on the back of its package, plaintiff described its product as a "cove sealing strip."
Plaintiff always used the term "Tub-Kove" in connection with its sealing strips. The strips, as applied to the tub and wall surfaces, can properly be described as a concave molding for a tub, and the words are descriptive unless saved by the fact that plaintiff spelled "cove" as "Kove." The pronunciation would be the same. Spelling "cove" as "Kove" does not make the word less descriptive. In Steem-Electric Corp. v. Herzfeld-Phillipson...
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