Potter Drug & Chemical Corporation v. Pasfield Soap Co.

• Decision Date: 02 June 1900
• Citation: 102 F. 490
• Parties: POTTER DRUG & CHEMICAL CORP. v. PASFIELD SOAP CO.
• Court: U.S. District Court — Eastern District of New York

102 F. 490

POTTER DRUG & CHEMICAL CORP. v. PASFIELD SOAP CO.

United States Circuit Court, E.D. New York.

June 2, 1900

Livingston Rutherford (J. E. & Wm. Maynadier, of counsel), for complainant.

Noah Tebbetts, for defendant.

In Equity. Suit for infringement of a trade-mark.

THOMAS District Judge.

The complainant shows that it is, and for many years has been the owner and user of the duly-registered name 'Cuticura' as a trade-mark for soap, and that during such time it has used a peculiar style of type, and that the name 'Cuticura' was printed on the covers of the boxes; that a capital 'C' of peculiar design was used; and that the name of 'Cuticura' was also printed on the sides and ends of the boxes, and on the top and sides of the package in which each cake was wrapped. The bill charges that:

'Since the 1st day of August, 1898, the defendant has been unlawfully putting up for sale and selling a soap inferior in quality to that of the complainant, in wrappers and packages on which were printed the name 'Cuticle,' and has imitated the style of type used by your orator in printing its labels and packages aforesaid, and still continues so to do, and that the defendant has thereby deceived and mislead the public, and led them to buy the soap so put up for sale by the defendant as and for the Cuticura Soap made and sold by your orator. * * * That the use of the said name 'Cuticle' on the packages and wrappers of soap by the defendant is an effort on the part of the defendant to imitate and simulate the trade-mark of your orator, and has been adopted by the defendant for that purpose, and that the same is in fact an imitation and simulation, and is calculated to deceive the public, and that the public has been deceived by such imitation and simulation. And, further, that the defendant sells its soap at a less price than your orator's regular established, and well-known price, for the purpose of more readily inducing the public to buy its soap as the soap of your orator's make.'

It will be observed that the charge is that the defendant uses the name of 'Cuticle,' and that he has imitated the style of type used by the complainant, and that he has thereby deceived and misled the public. The facts show that the defendant does manufacture and sell Cuticle Soap. Both the complainant and the defendant include three cakes of soap in each box. The defendant's box is approximately one-quarter of an inch longer, and slightly wider, than the complainant's box. The complainant's box is colored black, and the defendant's box is of a brick-red color. On the cover of the complainant's box are the words:

'Fragrant and refreshing Cuticura Soap. For cutaneous affections, the toilet, the bath, and nursery. This soap contains, in a modified form, all the medicinal properties of 'Cuticura,' the great skin cure.'

The defendant's cover contains the following:

'Soothing, protective, & restorative, fragrant & refreshing Cuticle Soap, for the toilet, nursery, bath, & cutaneous diseases. Recommended for athletes, Cures Chafes, sunburn, blisters, prickly heat, redness, sore eyes, old sores, skin irritation, eczema, chapped hands, hemorrhoids.'

The ends of the complainant's box show these words, 'Quarter Dozen Cuticura Soap,' while the ends of the defendant's box show, 'Quarter Dozen Cuticle soap.' On the front and opposite sides of the complainant's box are the words, 'Cuticura, Cuticura Resolvent, and Cuticura Soap,' and the words, 'Prepared by Potter Drug & Chemical Corporation, Boxton, U.S.A.,' while on the same relative sides of the defendant's box are the words, 'Soothing, protective, and restorative, for the toilet, nursery, bath, & cutaneous diseases; all skin irritation. Does not dry & Shrivel the skin & hair. Use after shaving. ' In the matter of type there is some similarity, especially in the peculiar style and position of the letters 'C' and 'S' wherever the name of the soap is exhibited, but the appearance of the defendant's outer box is so absolutely dissimilar and distinctive that no deception or confusion could reasonably arise.

Passing from the boxes to the wrappers immediately about the soaps the following conditions are found. On the face of the complainant's package are the words, 'Cuticura Soap, medicinal and toilet,'-- each word being placed under the word which precedes it; and beneath all, on a single line, are the words, 'Price, 25 cents.' The same identical arrangement occurs on the defendant's soap, except that above the word 'Cuticle' are the words, 'Trade-mark registered,' and beneath the word 'toilet' are the words, 'Price, 15 cents.' But the paper surrounding the complainant's soap is black, while the cardboard surrounding the defendant's soap is bright red. The words are printed on the complainant's package in red letters, and on the defendant's package in white letters. There is some similarity in the type,...