National Biscuit Co. v. Kellogg Co.
| Decision Date | 16 May 1938 |
| Docket Number | No. 5801.,5801. |
| Parties | NATIONAL BISCUIT CO. v. KELLOGG CO. |
| Court | U.S. Court of Appeals — Third Circuit |
Thomas G. Haight, of Jersey City, N. J., and Drury W. Cooper and Charles A. Vilas, both of New York City, for appellant.
W. H. Crichton Clarke and Edward S. Rogers, both of New York City, Robert T. McCracken, of Philadelphia, Pa., and E. Ennalls Berl, of Wilmington, Del., for appellee.
Before BUFFINGTON, DAVIS, and THOMPSON, Circuit Judges.
On April 12, 1937, during the March term of this court, a decree was entered, pursuant to an opinion filed the same day, reversing with costs a decree of the United States District Court for the District of Delaware, which dismissed the appellant's bill of complaint, and containing a direction to the District Court to enter a decree "enjoining the defendant appellee from the use of the name `Shredded Wheat' as its trade-name and from advertising or offering for sale its product in the form and shape of plaintiff's biscuit in violation of its trade-mark; and with further directions to the said District Court to order an accounting for damages and profits." (page 155 of 91 F.2d) Subsequently a petition for rehearing was filed by appellee and denied in due course. A petition for certiorari was then presented to the Supreme Court of the United States and denied in October, 1937, during the October term of this court. This was followed by a petition to the Supreme Court for a rehearing and by petitions to this court and the Supreme Court that injunctive relief be withheld pending a further application for certiorari, which appellee stated that it intended to make after a final decree following an accounting had been entered in the District Court and presumably finally passed upon by this court. All of these petitions were denied during the October term, 1937, of this court. On December 7, 1937, this court issued its mandate in the exact language, except as to costs, of the order of April 12, 1937, above quoted. Appellant then applied to the District Court to enter a final decree. This was done, but the District Court, in the parts of the decree which dealt with the injunction and the recovery of damages and profits, except for the usual provisions in such decrees enjoining officers, agents, etc., followed the exact language of the mandate. Appellee contended before the District Court and this court that the opinion, order, and mandate of this court meant that appellee could sell and offer for sale its biscuit in the usual pillow-shape form, provided it did not place on the cartons or in advertising matter what has been referred to in this case as the plaintiff's "two-biscuit-in-a-dish" trade-mark, and apparently contended that it could likewise use the words "Shredded Wheat" unless in connection with that trade-mark. Because the District Court was apparently in doubt as to exactly what the mandate intended to enjoin, and because the defendant had expressed a determination to advertise and sell biscuits in the pillow-shape form, appellant, before the expiration of the October, 1937, term, at which the mandate was issued, applied to this court to recall its mandate and clarify it.
We thought that, when our opinion was read as a whole, we had made it perfectly clear that what we intended to enjoin was the use of the name "Shredded Wheat" as a trade-name and the advertising and selling of biscuits in the pillow-shape form, irrespective of whether the two-biscuit-in-a-dish trade-mark were employed in connection with either the use of the name or the sale or advertising of the biscuit in the pillow-shape form. This was the construction which the appellee placed on the opinion and order of April 12, 1937, in its petition for rehearing to this court and appellant says that it placed the same construction upon them in its various petitions to the Supreme Court. It so admitted before this court at the hearing to recall the mandate. Appellee in those petitions doubtless placed upon...
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