Premier Malt Products Co. v. Kasser

• Decision Date: 02 December 1927
• Docket Number: No. 4159.,4159.
• Citation: 23 F.2d 98
• Parties: PREMIER MALT PRODUCTS CO. v. KASSER et al.
• Court: U.S. District Court — Western District of Pennsylvania

23 F.2d 98 (1927)

PREMIER MALT PRODUCTS CO. v. KASSER et al.

No. 4159.

District Court, E. D. Pennsylvania.

December 2, 1927.

Paul C. Wagner and Joseph S. Clark, Jr., both of Philadelphia, Pa., and Edward S. Rogers and Allen M. Reed, both of Chicago, Ill., for plaintiff.

Joshua R. H. Potts and T. Bertram Humphries, both of Philadelphia, Pa., for defendant Kasser.

E. Hayward Fairbanks, of Philadelphia, Pa., for defendant Philadelphia Malt Extract Co.

DICKINSON, District Judge.

The conclusion reached is that the bill should be dismissed, with costs.

Discussion.

The bill is based upon averments of registered trade-mark infringement and of unfair competition. Each party is the owner of a registered trade-mark. One is known as a Blue Ribbon and the other as a Blue Anchor. The trade-mark infringement charge is not very vigorously pressed, and we find that it has not been made out.

The unfair competition charge is the real one. The difficulty in most cases of this general kind is to get a grasp of just what it is which the plaintiff had of which the defendant has deprived him. The first concept of the wrong done in these cases was very definite. It was that the defendant had palmed off his own make of product for that of the plaintiff. This was a wrong both to the plaintiff and to the purchasing public as well. It was a trespass upon a clearly defined right. Every producer, manufacturer, and dealer even has a property right in the favor with which his product is regarded by the purchasing public. To deceive purchasers is a wrong done them, and to thereby rob a plaintiff of sales which he would otherwise make is a wrong to him. The source of this property right was the value of a good name. It is at least doubtful whether it has to-day any value. It is certain that, if litigation is any test, dealers no longer value it.

The complaint to-day is never that the defendant has been guilty of deception respecting the producing origin of what is sold, but that the defendant has made advertising appeals similar to those in use by the plaintiff. The sales appeal to-day is not in the merits of what is sold, vouched for by the name and reputation of the producer, but is wholly to the eye and to the ear of the purchaser. No one seems to know just what subtle thing it is in which the appeal subsists. Sale cries seem to affect the imagination of buyers, just as battle cries do warriors. Whether such slogans have any real value or not, all dealers ascribe a value to them. Much of whatever value they have may be ascribable to association of ideas, although this seems to be rather far-fetched. Blue ribbon is associated with the thought of excellence, at least in horse flesh. The color scheme which the package presents to the eye gives it attractiveness. This plaintiff thinks it has something of value in these two features.

What is that, however, in which the plaintiff has a property right? A trade-mark undoubtedly; but this is a mark of origin, and the packages here could not be found to work any confusion in this respect, as the name of the producers is plainly indicated. A name of designation is the subject of property, but the name Blue Anchor could not be said to be the same in name as Blue Ribbon, etc., or deceptively similar. There could scarcely be said to be any right of property in the attractive appearance of a sales package. What is commonly said is that one has the right of protection against the use by another of packages which are of deceptive appearance. This, however, is a meaningless phrase, until you write into it the thought of in what is the deception. If, as already said, it misleads purchasers into buying one make, thinking they are buying another, such a wrong is a legal injury. There is, however, as we have also already found, no charge here of such an injury.

What right (beyond the right above mentioned) has the plaintiff? In the old days molasses was sold from the barrel into the jug or pitcher of the purchaser. A dealer conceives the idea of selling it in cans of convenient size and attractive appearance. This changed method takes with customers, and all ask for molasses in cans. Outside of patent, trade-mark, or protection of origin rights, what legal right to the exclusive use of his improved sales method would this first introducer have? We cannot think of a legal wrong, without the thought of a correlative legal right. Thus no one can complain of a wrong without first showing a right. Loss or damage alone will not do, because there may be great damage without a legal injury, just as there may be a legal injury without damage. There must be both the injuria and the damnum to give a legal cause of action, and this remains true notwithstanding the legal fiction of nominal damages. Indeed, this truth made...