N.K. Fairbanks Co. v. Ogden Packing & Provision Co.

• Decision Date: 22 June 1914
• Docket Number: 372.
• Citation: 220 F. 1002
• Court: U.S. District Court — District of Utah
• Parties: N. K. FAIRBANKS CO. v. OGDEN PACKING & PROVISION CO.

220 F. 1002

N. K. FAIRBANKS CO. v. OGDEN PACKING & PROVISION CO.

No. 372.

United States District Court, D. Utah.

June 22, 1914

Smith &amp McBroom, of Salt Lake City, Utah, for respondent.

MARSHALL District Judge.

The plaintiff manufactures and sells a substitute for lard, which is principally composed of cotton seed oil and oleostearine and is by it called 'Cottolene.' It adopted the word 'Cottolene' as a trade-name of the product, and duly registered it as its trade-mark under the act of Congress. It has expended large sums of money in introducing and advertising its lard substitute under this name, and its ownership thereof as a valid trade-mark is admitted by the defendant. The defendant also manufactures a lard substitute of substantially the same descriptive properties as that of the plaintiff, and sells it in competition with the plaintiff's product for the same uses. The defendant commenced this manufacture and sale long after the plaintiff originated and registered its trade-mark, and at first called its substitute by the descriptive name 'Compound.' The plaintiff began a systematic attempt to popularize 'Cottolene' in Ogden, Utah, where the defendant was conducting its business; and thereafter the defendant selected the name of 'Chefolene' for its product, and under this name sold it in competition with the plaintiff. The price at which it was sold to the trade permitted the retail dealer to make a larger profit by selling Chefolene than if he sold Cottolene, so that he had an interest to substitute the one for the other. This suit was then brought to enjoin the use of the name 'Chefolene' in connection with a lard substitute, under the contention that it colorably imitated the plaintiff's trade-mark and was an infringement.

Unfair competition is not claimed, because the defendant's labels and packages are distinctive in appearance, size, and inscription. The two products cannot be confused, unless through mere similarity of the names. The plaintiff's trade-mark, 'Cottolene,' is a valuable part of its good will, in which it has a property right. If the name selected by the defendant for its product substantially lessens the value of the plaintiff's right, it is an infringement. The two names have a certain similarity in sound and appearance. The ideas connoted by them are however, different. The plaintiff's trade-mark was evidently selected to suggest the substances compounded by it; The defendant's name, omitting the suffix, the use to be made of the product. The suffix of each is...