Proctor & Gamble Co. v. Globe Refining Co.

• Decision Date: 07 March 1899
• Docket Number: 598.
• Citation: 92 F. 357
• Parties: PROCTOR & GAMBLE CO. v. GLOBE REFINING CO.
• Court: U.S. Court of Appeals — Sixth Circuit

92 F. 357

PROCTOR & GAMBLE CO. v. GLOBE REFINING CO.

No. 598.

United States Court of Appeals, Sixth Circuit.

March 7, 1899

Humphrey & Davie and Wm. Henry Brown, for appellant.

Richards Baskin & Ronald, for appellee.

Before TAFT and LURTON, Circuit Judges, and SEVERENS, District Judge.

SEVERENS District Judge, having stated the case as above, .

Upon this appeal the appellant relies not so much upon the infringement of its trade-mark as upon its complaint that the use by the defendant of its label is an unfair competition in trade. To the question whether it is so or not, the briefs and arguments of counsel are mainly directed. This being an appeal from an order denying a preliminary injunction, the question to be determined is whether the discretion of the court below was improvidently exercised and not whether, upon the final hearing, upon full view of all the facts in the case, this court would, upon the evidence before it, reach the same conclusion as that of the court below. Duplex Printing-Press Co. v. Campbell Printing-Press & Manufacturing Co., 16 C.C.A. 220, 69 F. 252; Garrett v. T. H Garrett & Co., 24 C.C.A. 173, 78 F. 472. To justify this court in reversing an order of this kind, it must be quite clearly apparent that a mistake was committed by the court below. Ritter v. Ulman, 42 U.S.App. 263, 24 C.C.A 71, and 78 F. 222.

By the test applicable to such an appeal, we proceed to consider what appear to us to be the material facts of the controversy, so far as they can be ascertained from the record of the proceedings before the circuit court. This involves principally a comparison of the labels of the respective parties involved in the second application for an injunction, but incidentally it will be proper to give some attention to the label used by the defendant before the injunction was granted upon the original motion; it being insisted by the appellant that, by reason of the defendant's having diverted in part the trade of the complainant by the use of its first label, the use of the second label, which it is charged is only a colorable variation of the first, enables the defendant more effectually to absorb the complainant's business. The packages in which the respective parties put up their soap for the market are similar in form and size, being about 4 inches long, 2 3/4 inches wide and 1 1/2 inches thick. The label of the complainant, printed upon the wrapper on the upper flat surface of the cakes, consisted in large part of the words 'Every Day Soap'; the first two words being in large, fancy letters, in a curved line in the upper part of a rectangular space about the size of the cake, and the word 'Soap,' also in large, fancy letters, under the former words. In the lower left-hand corner is a circular figure about three-fourths of an inch in diameter, in the resemblance of a full moon bearing a human face within it looking to the left; the rest of the contents of the circle being a black field, with 13 white stars thereon. At the right of this, and extending across three-quarters of the length of the label, are the words 'Proctor & Gamble,' and under these the word 'Cincinnati,' all in good-sized letters. There is some additional matter of ornamentation. All the foregoing characters were stamped or printed upon the face of light-yellow paper. Upon one edge of the cake, or rather upon the wrapper where it covers the side of the cake, there were printed the words, 'Manufactured at Ivorydale,' 'Factories conducted on the profit- -sharing plan,' in two lines on a rectangular space about three inches long and half an inch wide, of the same light-yellow color. The rest of the complainant's wrapper is of a darker color, filled with an obscure, uniform ornamentation. The first of the defendant's labels (being the one the use of which was enjoined) was of the same color as the complainant's, and bore upon its face, in large letters, the words 'Everybody's Soap'; the letters being in about the same style as the complainant's, and formed in a very similar manner. There was a circular figure of the same size in the lower left-hand corner, but fulled with different characters. At the right hand of this, where the complainant printed the words 'Proctor & Gamble,' the defendant printed the words 'Globe Refining Co.' Underneath this was 'Louisville, Ky.,' instead of 'Cincinnati' in the complainant's label. On the wrapper along both edges of the cake was printed other matter, having no resemblance to that of the complainant's. This wrapper had been in use for a few weeks only when the original bill was filed, and was thereupon discontinued. The defendant had been previously engaged for a much longer time in the manufacture and sale of the same or similar soap. The defendant's second label (the one now in question) was adopted, as the defendant claims, to obviate the objections which had been made to the use of the first. The wrapper was of the same color as before. The label on the upper surface of the cake was black, except where lettered. It bore the words 'Everybody's Soap'; the word 'Everybody's' being in script; the letter 'e' being a capital, and the rest in ordinary style, though all were of good size, and plainly readable at some distance. The word 'Soap' was in plain type, in smaller letters, and both were arranged in a similar relation to each other and to the surface of the label as the words 'Every Day' and 'Soap' in the complainant's label, except that the word 'Everybody's' was straight, instead of circular, running from near the lower left-hand to the upper right-hand corners, and the word 'Soap' filled the space in the lower right-hand corner. The color of the letters was light yellow, and the letters appear to consist of the wrapper itself showing through the black field of the label surrounding them. There was no circle in the lower left-hand corner, as in the complainant's label and the first of the defendant's, and there was no name of the manufacturers and their place of business, as in those. There was scarcely any ornamentation, the whole being of plain style. On one side of the cake upon the wrapper was printed in black letters the words, 'Everybody's Soap,' 'made by' 'Globe Refining Co., Louisville, Ky.,' in three lines; and on the other, 'Everybody's Soap,' 'Best, goes farthest,' in two lines. The rest of the wrapper was filled with pictures of a cavalcade, illustrating how all classes and peoples glorify 'Everybody's Soap.'

Having given this somewhat minute description of the labels which make the ground of the controversy, it remains to consider whether there was fair ground of the conclusion of the court below that a preliminary injunction should be denied.

The sharp competition in business of recent years has brought about a great increase in suits of this character, and the decisions therein have rapidly multiplied. It would be a difficult task to harmonize them upon the principles which all of them recognize. This is because of such an infinite variety in the facts and circumstances with which the courts have had to deal,-- a variety perhaps not surpassed in the field of any other department of judicial labor. The decisions, however, do undoubtedly help to sharpen the judgment, and often shed a line of light which leads one on to a just conclusion. Each case depends upon its own facts and circumstances, and must be decided upon the application thereto of settled principles which have received no substantial modification in recent years. The cardinal rule upon the subject is that no one shall, by imitation or any unfair device, induce the public to believe that the goods he offers for sale are the goods of another, and thereby appropriate to himself the value of the reputation which the other has acquired for his own products or merchandise. Canal Co. v. Clark, 13 Wall. 311; Coats v. Thread Co., 149 U.S. 562, 13 Sup.Ct. 966. The substance of the rule is well understood, and it is unnecessary to make extensive citation of cases which have recognized it. It sometimes happens that the labels or characteristic marks which manufacturers use upon their goods are catchwords designed to attract purchasers, and to inspire the belief that theirs excel all others in merit, or that in popular estimation they are of superior quality. It will not...