Nebraska Consol. Mills Co. v. Shawnee Milling Co.
| Decision Date | 30 June 1952 |
| Docket Number | No. 4395.,4395. |
| Citation | 198 F.2d 36 |
| Parties | NEBRASKA CONSOL. MILLS CO. v. SHAWNEE MILLING CO. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Gerrit P. Groen, Chicago, Ill. (James P. Hume, Chicago, Ill., and Byrne Bowman, Oklahoma City, Okl., on the brief), for appellant.
Kenneth Abernathy, Shawnee, Okl. (Abernathy & Abernathy and G. C. Abernathy, Shawnee, Okl., on the brief), for appellee.
Before PHILLIPS, Chief Judge, and BRATTON and HUXMAN, Circuit Judges.
Nebraska Consolidated Mills Company1 brought this action against Shawnee Milling Company2 for alleged trade-mark infringement and unfair competition. Both Consolidated and Shawnee are engaged in the manufacture and sale of high-grade family flour and other wheat products. Each competes with the other in the sale of its products throughout the Southern states of the United States, and particularly in Alabama. Consolidated charges that its common-law rights in the trade-mark "Mother's Best" have been infringed by Shawnee's use of the trade-mark "Mother's Pride" on identical goods and that Shawnee has engaged in unfair competition in that the use by it of the trade-mark "Mother's Pride" on flour and related products is calculated to deceive and does deceive the purchasing public by inducing members thereof to believe that Shawnee's products are Consolidated's products. From an adverse judgment, Consolidated has appealed.
Neither "Mother's Best" nor "Mother's Pride" is a registered trade-mark. Consolidated only asserts common-law rights in its trade-mark.
The label employed by Consolidated on its flour containers may be thus described: In the upper portion of the label on the upper side of the sack, are the words "Mother's Best" in blue letters on a white background. While the words are in hand lettering, the letters closely resemble Gothic type (sans-serif). Below the words "Mother's Best" is a design with a circular blue border and an inner blue circle. Between such circle and the border is an area with a white background and the words "Absolutely Guaranteed for Every Baking Need" in blue letters. Inside the blue circle is an area with a white background and wheat heads of the color of ripe wheat. Superimposed on such design are rectangular areas with blue borders and white backgrounds. The word "Enriched" is in one of such areas and the word "Flour" in the other of such areas, both in red letters. To the left of the design is the name and address of the manufacturer in blue letters. To the right of the design are the words "Phosphated White Flour With Vitamins" in blue letters. In a line across the label below the design is the weight of the package in blue letters, the words "For Delicious Cake — Pastry — Bread" in red letters and the word "Bleached" in blue letters. The butt label is composed of the words "Mother's Best" in type resembling Gothic (sans-serif) and the words "Enriched Phosphated Flour," all in blue letters. On the left of such label is the weight in red letters and figures and on the right the word "price" in red letters.
The label employed by Shawnee may be thus described: On the upper side of the sack, against a background of blue, white, and yellow, is a picture of a mother and child, a loaf of bread, and cupcakes. Above the picture of the mother, in hand lettering, and in type that is a modified Roman, are the words "Mother's Pride" in red letters with blue borders. On the sides of the label are the words "Self-Rising" in red letters and below the label are the words "Self-Rising Flour Bleached" in red letters. Below the latter words is the name of the milling company, with its address, in blue letters. The butt label is rectangular in form with a white background and blue border. It contains in the center the words "Mother's Pride" in modified Roman type, in red letters with blue borders. On the left side of the rectangular butt label are the words "Extra Fancy Patent" in blue letters and on the right side the weight of the package and the words "Self-Rising Flour Bleached" in red.
The trial court, among others, made the following findings:
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...was little likelihood of confusion and those between "Mother's Best" and "Mother's Pride" which this court held in Nebraska Consolidated Mills v. Shawnee Milling Co., supra, were not confusingly While in some cases, particularly those involving labels, the question of confusing similarity m......
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