RG Barry Corporation v. A. Sandler Co.

• Decision Date: 21 January 1969
• Docket Number: No. 7187.,7187.
• Citation: 406 F.2d 114
• Parties: R. G. BARRY CORPORATION, Plaintiff, Appellant, v. A. SANDLER CO., Inc., Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

406 F.2d 114 (1969)

R. G. BARRY CORPORATION, Plaintiff, Appellant, v. A. SANDLER CO., Inc., Defendant, Appellee.

No. 7187.

United States Court of Appeals First Circuit.

January 21, 1969.

Walter D. Ames, Washington, D. C., with whom Felix M. DeRosa, Washington, D. C., and Rowland V. Patrick and Charles C. Winchester, Boston, Mass., were on brief, for appellant.

James E. Mrose, Boston, Mass., for appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

COFFIN, Circuit Judge.

This is an appeal from an action of trademark infringement and unfair competition. Appellant, R. G. Barry Corporation, plaintiff below, is the owner of two United States trademarks, "Angel Treads" (used in connection with scuffs or slippers for women and men) and "Angelite" (used for soles for scuffs or slippers for women and men). Plaintiff began first using the "Angel Treads" mark in 1948 and first began using the "Angelite" mark in 1954. Plaintiff has engaged in extensive manufacturing and advertising with regard to products sold under these marks.

Appellee, Sandler Company, first began using the term "Angel Touch" in 1961 (in connection with pumps and step-ins for women and misses). Although "Angel Touch" has never been used in connection with slippers or scuffs by appellee, the record indicates that Sandler's goods are sometimes sold in the same stores as Barry's — and in the same departments.

The parties stipulated the facts in the district court action; those stipulations, along with the exhibits and the testimony of one defense witness constituted the sole evidence before the district court. The trial court, in a Memorandum consisting of twelve separately numbered findings, dismissed Barry's complaint, stating that Sandler had not infringed Barry's marks and was not in unfair competition with appellant.

Aside from appellant's objections to certain factual findings, which we note briefly in the margin,¹ its major contentions are that the district court erred in underestimating the similarity between the impressions conveyed by Barry's trademarks and Sandler's term "Angel Touch", in finding that "Angel Treads" is not "arbitrary, unique or fanciful" and in making the following additional findings to support its ultimate conclusion that there was no likelihood of confusion on the part of ordinarily prudent customers: (1) that "Angel Treads" is a weak mark; (2) that it has not acquired a secondary meaning; (3) that Barry's slippers and scuffs are significantly unlike Sandler's shoes; (4) that the two product lines have a marked difference in price; (5) that the two lines are merchandised differently; and (6) that the two lines are promoted with the use of the two firms' significantly different housemarks.

We hold that the district court applied the proper standards and that its findings are consonant with both the law and the evidence.

It is of course apparent that, standing alone, the two terms, "Angel Tread" and "Angel Touch" are similar in appearance and sound, and suggest softness and lightness. Restatement of Torts, § 729(a). Were "Angel Tread" a strong mark, i. e., one so arbitrary, fanciful, and unique that its use through promotion had come to symbolize the source of origin rather than a not very extraordinary description of the qualities of the product, the court might not have been justified in looking further. But it was justified in finding this a weak mark, taking into consideration its suggestiveness, Barry's own insistence before the Patent Office that its two-word combination significantly set it apart from a prior mark for the single word "Angel", the plethora of other registrations of composite "Angel" trademarks and the use of a number of such marks in the retail clothing business. That Barry's sales and advertising expenditures were substantial did not compel a finding by the court that the...