Puretex Lemon Juice, Inc. v. California Products, Inc.
| Citation | 324 S.W.2d 449 |
| Decision Date | 06 May 1959 |
| Docket Number | No. 13444,13444 |
| Parties | PURETEX LEMON JUICE, INC., Appellant, v. CALIFORNIA PRODUCTS, INC., et al., Appellees. |
| Court | Texas Court of Appeals |
Strickland, Wilkins, Hall & Mills, Mission, for appellant.
Robert H. Kern, Jr., McAllen, James & Conner, Fort Worth, for appellees.
Appellees, California Products, Inc., and Charles H. Davis, hereinafter called California Products and Davis, instituted this suit against appellant, Puretex Lemon Juice, Inc., hereinafter called Puretex, seeking a declaratory judgment and also a construction of the judgment of the court in a former suit, being Cause No. 1860, in the 107th District Court of Willacy County, wherein an agreed judgment was rendered in favor of appellant and against appellees. The case was tried to a jury and, after a finding upon two special issues, judgment was rendered in favor of appellees and against appellant. Appellant presented its motion for a new trial, which was overruled, and then duly perfected this appeal.
Appellees alleged that on the 3rd day of June, 1952, the 107th District Court of Willacy County, Texas, entered a judgment, by the terms of which they were enjoined and ordered to cease and desist from marketing or selling lemon and lime juice in bottles which resemble in appearance the bottles used by appellant. They then alleged that the bottle which they proposed making and using in the future, which was only shown on a blueprint and in the form of a plastic model at the time of the trial, in no way resembled in appearance the bottle of appellant. They did not allege or offer any proof whatever that the judgment in Cause No. 1860 was in any way vague, uncertain or ambiguous in its terms, nor did they allege that said judgment, which shows on its face to be an agreed judgment, did not in fact reflect the agreement of the parties. They then alleged that they desired the advice of the court as to whether or not the bottle would violate the injunction, before proceeding further or having the dies made in order that the bottles might be manufactured.
The following facts appear from the record:
For several years prior to the proceedings in Cause No. 1860, Puretex had been in the business of processing and selling lemon and lime juice; and had designed a bottle for use in selling its products. The bottle was made of glass in the shape of a Meyer lemon standing on end, having a small flat surface on the bottom for seating and a cap at the top. The surface of the glass was stippled to give the appearance of a lemon, when filled with juice. Puretex's trade mark thereon was duly registered. Appellee Davis formed the California Products corporation and duplicated the Puretex bottle for use in selling lemon and lime juice. Puretex then filed an infringement suit against appellees, seeking damages in the sum of $4,500 and an injunction against any future infringement. The case was settled by agreed judgment.
Since the judgment appellees have marketed their products in an ordinary common stock bottle and there has been no controversy between the parties. However, their sales steadily declined to almost fifty percent until just before filing the last proceeding. Then appellees made a plaster Paris model of a proposed bottle and submitted it to appellant, seeking an opinion as to whether it would violate the injunction, to which appellant replied that, in its opinion, it would. Appellees then submitted a second plaster Paris model and received the same reply. Then they caused a blue print to be made of a third model and made a solid plastic model thereof and submitted them to appellant with the same request. Appellant replied that it did not care to express an opinion on the model submitted, but would stand on the judgment theretofore rendered, and that if appellees, in its opinion, violated the injunction, appellant would 'take the matter up with the court.' Appellees then on August 2, 1957, filed the instant suit.
Upon the trial of this cause appellees offered in evidence the judgment in Cause No. 1860, which was an agreed judgment and ordered, adjudged and decreed that appellees be perpetually enjoined from marketing and selling lime or lemon juice in any bottles which resembled in appearance the bottle used by appellant. There was attached to said judgment the picture of appellant's bottle as shown by its registered trade mark. The judgment provided further that appellees be enjoined 'from any infringement upon or violation of Registrations No. 16256 and No. 16257 in the office of the Secretary of State of the State of Texas, which said registrations are of the wording, symbols, signatures, seals, pictures and facsimiles as follows:' Then followed as part of said judgment, pictures showing the labels and wording on appellant's bottle, and certified copies of the registrations.
The court submitted the case to the jury on two special issues, as follows:
'Special Issue No. 1: Do you find from a preponderance of the evidence that the Plaintiff, California Products, Inc., plans to have produced from the blueprints furnished by the Owens, Illinois, Glass Company a clear glass bottle for its use as a container for its product, of like appearance to the clear plastic model introduced in evidence?'
'To which the jury answered 'Yes'.
'Special Issue No. 2: Do you find from a preponderance of the evidence that the bottle which Plaintiff, California Products, Inc., intends to have produced for its use from the blueprints furnished by the Owens, Illinois, Glass Company if you have so found, will not so closely resemble in appearance the bottle of Defendant and its markings as to be likely to deceive a reasonably prudent buyer, exercising such ordinary care and observation as shoppers generally may be expected to use so as to mislead such buyer into believing that this bottle containing plaintiff's product, in fact, contains the product manufactured and sold by Puretex Lemon Juice, Inc.?'
To which the jury answered 'It will not be likely to deceive.'
Thereupon the court rendered judgment and construed the former judgment as follows:
'That the terms of the agreed judgment entered by this Court on June 3, 1952, in Cause No. 1860, entitled Puretex Lemon Juice, Inc. v. California Products, Inc., and Charles H. Davis, properly construed, do not prohibit the use by Plaintiffs herein, in the marketing of lemon and lime juices, of a bottle resembling the said bottle of Defendant in any respect whatsoever, but the purport and meaning thereof is to prevent the use by Plaintiffs of a bottle so resembling in appearance that of Defendant's bottle as to be calculated to mislead and deceive the buying public, and;
'That the use by Plaintiff, California Products, Inc. of its proposed bottle, above described, in the marketing of its lemon and lime juices will not be violative of, or inconsistent with, the injunction issued by this Court in said Cause No. 1860.'
Two main contentions, which are determinative of the case, are presented by appellant's points. First, appellant contends that appellees' petition for declaratory judgment and the evidence in support thereof show that appellees were seeking an advisory opinion of the court upon a hypothetical question or state of facts, not in existence and based upon future contingencies; that no real or justiciable controversy existed between the parties. Second, appellant contends that the judgment of the trial court is erroneous because the effect of the judgment is to modify and change the terms of a final judgment rendered more than five years prior thereto, and that there is no pleading or evidence to support such construction as the court gave to the judgment in question. We agree with both of appellant's contentions.
These contentions are raised by proper points in appellant's brief, and in the trial court by exceptions to appellees' pleading, by general denial and affirmative pleadings, by motions for instructed verdict, by exceptions and objections to the court's charge, by motion to set aside the verdict and dismiss the...
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