M.C. Peters Milling Co. v. International Sugar Feed No. 2 Co.
| Decision Date | 12 December 1919 |
| Docket Number | 3304. |
| Citation | 262 F. 336 |
| Parties | M. C. PETERS MILLING CO. v. INTERNATIONAL SUGAR FEED NO. 2 CO. |
| Court | U.S. Court of Appeals — Sixth Circuit |
A. C Paul, of Minneapolis, Minn., and Julian C. Wilson, of Memphis, Tenn., for appellee.
Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.
On the 9th of March, 1916, the M. C. Peters Milling Company, a corporation organized under the laws of the state of Nebraska, commenced an action in the United States District Court in and for the Western District of Tennessee, against the International Sugar Feed No. 2 Company, a corporation organized under the laws of the state of Minnesota, to enjoin its alleged infringement of a registered trade-mark, and also for unfair competition.
The defendant, by its answer, denies that it has infringed plaintiff's trade-mark, or that it has in any way manner, or form entered into or conducted any unfair competition. Upon the issues joined, the District Court found for the defendant, and dismissed the bill of complaint, with costs.
It appears from the evidence that the characteristic feature of plaintiff's trade-mark consists of two concentric circles. Within the innermost circle is the picture of a horse and rider. The trade-mark of the defendant also consists of two concentric circles, within which is another circle with saw-tooth outline. This third circle was inserted within the inner and outer circles about 1912 or 1913. It appears from the evidence, however, that this was omitted from some of the bags through mistake of the bag company furnishing the same; but as soon as this mistake was discovered it was corrected, and no bags have been used since that time without the saw-tooth circle. These concentric circles are within a rectangular field surrounded by heavy lines, also in sawtooth form. Outside this border, around the rectangular field, and a part of it, are straight lines touching the saw-tooth points. Within the inner circle is the picture of a horse.
It further appears from the evidence that, prior to registration of plaintiff's trade-mark practically all of its distinguishing features, except the rider, were in general use, in some form or other by the manufacturers of horse feed. It also further appears that it is and was a custom in general use by all manufacturers of stock feed to print or stamp on the bags containing the same a picture of the head or whole of the animal for which the feed is specifically intended. While this is conceded by the appellant, the claim is made in its behalf that the brands and trade-marks of this character were applied only to what is known to the trade as 'dry feed,' and that it was the first manufacturer to use such mark or brand in connection with the manufacture and sale of a mixture of grain, alfalfa, and molasses, known to the trade as 'sweet feed'; that 'dry' and 'sweet feeds' are entirely different products; and that for this reason it is entitled to the exclusive use of the concentric circles, and the picture of a horse within the inner one, in connection with the manufacture and sale of 'sweet feeds.'
This question is discussed and decided in the case of W. A Gaines & Company v. Rock Springs Distilling Company, 226 F. 531, 537, 141 C.C.A. 287, 293. That case involved the distinction between straight whisky and blended whisky, and in that connection Judge Denison, speaking for the court, said:
'Whatever the extended classifications and subclassifications of the Patent Office practice may contemplate, neither the common law nor the registration statute can intend such confusion as must result from recognizing the same trade-mark as belonging to different people for different kinds of the same article.'
The Supreme Court of the United States, in reviewing this case (246 U.S. 312, 320, 38 Sup.Ct. 327, 329 (62 L.Ed. 738)), quotes this language with approval.
It necessarily follows that, where it has been the common custom of the manufacturers of horse feed to print or stamp the picture of a horse on the bags containing the same, the appellant would not acquire any prior right to the use of such picture by reason of the fact that it was first to use the same on the feed containing an additional ingredient, for, after all, it is still horse feed, although differing in this respect as to its component parts.
In determining whether the brand used by the defendant is an infringement of plaintiff's trade-mark, this court is not disposed to consider or apply any nice, technical distinctions, such as an artist's eye would readily perceive, but rather only such marked differences as would be readily apparent to the ordinary purchaser of horse feeds. The doctrine is fairly stated by Mr. Nims, in his work on Unfair Competition and Trade-Marks (2d Ed.) p. 583, in this language:
'Such a similarity as will deceive is that likeness which renders the average buyer unable to distinguish the defendant's name or mark from the memory of plaintiff's name which he carries in his mind, not such as will enable him to know them apart when the two are put side by side before him.'
Applying this principle to the facts in this case, it is apparent...
To continue reading
Request your trial
-
Hygienic Products Co. v. Judson Dunaway Corporation
...a trade and acquired a good will in business in connection with the rightful use of such trade token." Peters Milling Co. v. International Sugar Feed Co., 6 Cir., 262 F. 336, 340. "Whether the complainant's action proceeds upon the ground of infringement of a trade-mark or upon the ground o......
-
Queen Mfg. Co. v. Isaac Ginsberg & Bros
...723; Howe Scale Co. v. Wyckoff, Seamans & Benedict, 198 U. S. 118, 140, 25 S. Ct. 609, 49 L. Ed. 972; Peters Milling Co. v. International Sugar Feed No. 2 Co. (C. C. A. 6) 262 F. 336, 340. In Rope Co. v. Fuller, supra, the court "The sale of goods by one manufacturer or vendor as those of a......
-
Van Camp Sea Food Co. v. Westgate Sea Products Co.
...Co. v. Capitol City Mfg. Co. (C. C.) 42 F. 64, and see, also, Mallinson v. Ryan (D. C.) 242 F. 951; M. C. Peters Milling Co. v. International Sugar Feed No. 2 Co. (C. C. A.) 262 F. 336, 339; P. Lorillard Co. v. Peper (C. C. A.) 86 F. 956; American Tobacco Co. v. Globe Tobacco Co. (C. C.) 19......
-
Ballard & Ballard Co. v. Borden Co.
...misled, * * *." Liggett Tobacco Company v. Finzer, 128 U.S. 182, 9 S.Ct. 60, 32 L.Ed. 395, quoted in M. C. Peters Milling Company v. International Sugar Feed Company, 6 Cir., 262 F. 336. Evidence of actual confusion is not necessary, but confusion or deception must be the natural and probab......