My-T Fine Corporation v. Samuels
| Decision Date | 13 February 1934 |
| Docket Number | No. 189.,189. |
| Citation | 69 F.2d 76 |
| Parties | MY-T FINE CORPORATION v. SAMUELS et al. |
| Court | U.S. Court of Appeals — Second Circuit |
Warfield & Brown, of New York City (Tracy R. V. Fike and F. P. Warfield, both of New York City, of counsel), for appellant.
Abberley & Bryde, of New York City (Arthur H. Amon, of New York City, of counsel), for appellees.
Before L. HAND, SWAN, and CHASE, Circuit Judges.
The plaintiff is the manufacturer of a confection of chocolate and sugar, used in making a kind of pudding and sold in small cardboard boxes. The suit, which is founded upon diversity of citizenship, is to protect its make-up which the defendant is alleged to have copied. The boxes are about three and a half inches high, three inches wide, and an inch and a half thick; they contain four ounces of the confection. The plaintiff's predecessor put out the earliest box in 1915; on its front were the words, "My-T-Fine," printed in red; below, a black circle with a picture upon it of a French cook; below this, the word, "Chocolate," also in red. The whole outside of the box was striped with white and light green stripes; red stripes, about an eighth of an inch wide, ran along the horizontal edges of the top and bottom. The back contained at the top the legend in red, "My-T-Fine Pudding," below which on a white tablet were printed directions; the top, bottom and sides contained other printing in black and red.
This box the plaintiff took over in 1919 when it succeeded to the business and used until 1923. It is not the subject of this suit. Between 1923 and 1927 the body of the box was colored a solid green of deeper shade; red stripes were added, to the four perpendicular edges; the black circle on the front was reduced to half its diameter, and the white tablet on the back was eliminated, leaving the directions on solid green. Two later forms, one from 1927 to 1929, and the other since 1929, differed from the second only in having on the front a white chevron on the upper part, which bore the words, "My-T-Fine," in red and black; and on the back at the bottom a white strip with a printed "note": The suit is to protect the box of 1929. By 1933 the plaintiff's sales had grown to an enormous total, over 100,000,000 in all; it had spent more than a million and a half dollars in advertisement; its trade had spread very extensively through the Union. To some extent its product has become known as the "Red and Green package," but by fax the greater number of customers ask for it by its name, "My-T-Fine."
The defendants sell a similar product under the name, "Velmo." Before July 1, 1931, when they first introduced it into Now York City, the body of their box, which was of substantially the same size as the plaintiff's, was solidly of about the same shade of green, but had no red stripes along the edges. At the top of the front was a black, instead of a white, chevron on which in large red letters was the word, "Velmo." Below in black was the word, "Chocolate," and below that in red on a white stripe, "Dessert." The back was also of green, on which the directions for using were printed in black; these were in part a literal copy of the plaintiff's. In July, 1931, the defendants added red stripes around all the edges of this box, of substantially the same width as the plaintiff's, and a white tablet on the back to contain the printed matter. They sold it very generally throughout the city of New York, so generally that they insist it must have come to the plaintiffs notice very soon after it was first put on sale. The suit was filed on July 7, 1933, and the plaintiff at once moved for a preliminary injunction. The judge, thinking the similarity between the packages too little, and the delay too long, denied the motion.
It would be impossible on this record to say that any one who meant to buy the plaintiff's pudding has hitherto been misled into taking the defendants' by a mistake in the appearance of the box. Indeed such evidence is usually hard to get even after a trial, and upon this motion the affidavits are too hazy and unreliable, even if undisputed. The plaintiff has proved no more than that the boxes look a good deal alike, and that confusion may well arise; and were it not for the evidence of the defendants' intent to deceive and so to secure the plaintiffs customers, we should scarcely feel justified in interfering at this stage of the cause. We need not say whether that intent is always a necessary element in such causes of suit; probably it...
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