Northam Warren Corporation v. Universal Cosmetic Co.
Decision Date | 29 April 1927 |
Docket Number | No. 3766.,3766. |
Parties | NORTHAM WARREN CORPORATION v. UNIVERSAL COSMETIC CO. |
Court | U.S. Court of Appeals — Seventh Circuit |
Mock & Blum, of New York City, and George E. Mueller, of Chicago, Ill., for appellant.
Edwin D. Lawlor, of Chicago, Ill., for appellee.
Before ALSCHULER, PAGE, and ANDERSON, Circuit Judges.
In appellant's suit, charging appellee with unfair competition and infringement of its registered trade-mark "Cutex," the master's findings, favorable to appellant, were reversed by the court, and the bill dismissed. The evidence was not sufficient to justify a finding for appellant on the charge of unfair competition.
Numerous of the articles made and sold by the parties were, as to the purposes for which they were intended and advertised to the public, substantially identical. Appellee said in argument that the formula for the cuticle removing liquid was probably the same in both articles.
Appellee used as its designating trade-mark the unregistered "Cuticlean," and the only question is. Is there, considering the purposes for which they were used, such a similarity in the words "Cutex" and "Cuticlean" as to amount to an infringement? The words were fashioned by the respective parties, and neither word had any pre-existence or meaning. This case differs in that respect from the cases of Potter Drug Co. v. Pasfield Soap Co. (C. C.) 102 F. 490, 494, and (C. C. A.) 106 F. 914, and Flexlume Sign Co. v. Opalite Sign Co., 292 F. 98 (7th C. C. A.).
A trade-mark is but a species of advertising, its purpose being to fix the identity of the article and the name of the producer in the minds of the people who see the advertisement, so that they may afterward use the knowledge themselves and carry it to others having like desires and needs for such article. All advertising is an appeal to human interest and instincts, and its value has become so well known that manufacturers, merchants, and other concerns, having property for sale, oftentimes spend millions annually in creating a market and keeping open markets already created. Experience seems to justify such expenditures.
While the human mind drops and forgets much that it hears and sees, yet it holds fast to some word, place, name, sign, or symbol contained in an advertisement, through which some human need has been supplied, and that recollection is carried by the people into times and places far removed from the times and places of the publication....
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