San Francisco Ass'n for the Blind v. Industrial Aid

• Decision Date: 06 February 1946
• Docket Number: No. 13143.,13143.
• Citation: 152 F.2d 532
• Parties: SAN FRANCISCO ASS'N FOR THE BLIND v. INDUSTRIAL AID FOR THE BLIND, Inc.
• Court: U.S. Court of Appeals — Eighth Circuit

152 F.2d 532 (1946)

SAN FRANCISCO ASS'N FOR THE BLIND v. INDUSTRIAL AID FOR THE BLIND, Inc.

No. 13143.

Circuit Court of Appeals, Eighth Circuit.

January 10, 1946.

Rehearing Denied February 6, 1946.

Hugh N. Orr, of San Francisco, Cal. (Rodney Bedell, of St. Louis, Mo., and Charles S. Evans, of San Francisco, Cal., on the brief), for appellant.

Joseph J. Gravely, of St. Louis, Mo. (Emmet T. Carter, David Baer, Jr., Carter, Bull & Garstang, and Carr, Carr & Gravely, all of St. Louis, Mo., on the brief), for appellee.

Before SANBORN, WOODROUGH, and JOHNSEN, Circuit Judges.

SANBORN, Circuit Judge.

This appeal is from a judgment dismissing the complaint of the appellant. The complaint charged the appellee with infringement of the appellant's registered trade-mark "Blindcraft" and with unfair competition. The appellant will be referred to as "plaintiff", and the appellee as "defendant". The District Court determined that the term "Blindcraft" is descriptive and not subject to appropriation as a trade-mark, and that defendant's products, which bear the mark "Blind-Kraft", were not shown to have come into competition with those of plaintiff. The plaintiff asserts that, under the evidence and the applicable law, it was entitled to judgment.

The plaintiff is a California corporation, formed in 1914. It has an office and factory in San Francisco. Its sole purpose is to assist the blind, mainly by furnishing them with gainful employment. It manufactures and sells brooms, brushes, mops, baskets, reed and rattan furniture, rugs and mats, and other similar products. All of these are made by blind workmen. It receives no public subsidies and sells its products upon their merits in competition with the makers of similar goods. Plaintiff's capacity to help the blind depends upon its ability profitably to market its products, which are sold in interstate and foreign commerce. The yearly volume of its business amounts to about $200,000.

In 1916 the plaintiff adopted "Blindcraft" as its trade-mark, and since that time has used the mark upon all of its products, stationery, and advertising matter. It has widely publicized its goods and trade-mark in the United States and in foreign countries. The plaintiff has procured four registrations of its trade-mark in the United States Patent Office under the Trade-Mark Act of February 20, 1905, 33 Stat. 724, 15 U.S.C.A. § 81 et seq.; the first on January 5, 1926, for brooms, brushes, dusters, and mops; the second on March 23, 1926, for baskets; the third on April 6, 1926, for reed and rattan furniture; and the fourth on February 12, 1929, for rugs and mats. The plaintiff, since it adopted its trade-mark, has claimed the exclusive right to use it, and has sought to prevent others from appropriating it. On three occasions the use of the trade-mark by similar organizations was discontinued by them after notice of plaintiff's rights and registrations. One of these organizations was located in Massachusetts, one in New York, and one in California. The plaintiff, in 1937, notified the defendant that its use of the mark "Blind-Kraft" was an infringement of the plaintiff's trade-mark. The defendant has continued to use the mark. Evidence was introduced by the plaintiff to show that from a date prior to 1926 its products have been sold and distributed throughout the United States, including the state of Missouri and its neighboring states.

The defendant is a Missouri corporation organized, apparently, in 1934. It serves the same useful purpose in St. Louis, Mo., that plaintiff serves in San Francisco, Cal. The minutes of the Missouri Commission for the Blind, a State agency, show that on January 5, 1935, it transferred to the defendant "all right, title, and interest in and to the * * * St. Louis Broom Shop for the Blind," including its assets and good will. This shop, prior to the time the defendant took it over, was evidently operated under the supervision of, and belonged to, the Commission. The defendant receives State aid. It manufactures in St. Louis, and sells in Missouri and in states bordering on Missouri, brooms, mops on a handle, mop heads, door mats and handkerchiefs. About 1935 it made baskets for a period of six months. It attempted, unsuccessfully, to manufacture brushes. Its products are made by blind workmen and it has used the mark "Blind-Kraft" upon its goods with the consent of the Missouri Commission for the Blind. The mark has been used since December 15, 1928, upon the products of the shops established in Missouri for the blind by the Commission. The mark "Blind-Kraft" was registered as a trade-mark by the Commission with the Secretary of State of Missouri on February 25, 1937, to be applied to "Brooms, Mops, Rugs, Bath Mats, Door Mats, Towels, Wash Cloths, Dish Cloths, Dust Cloths, Aprons, Shoe and Laundry Bags, Coat Hangers, Ironing Board Pads and Covers, Hot Plate Pads, Leather Belts and Purses, and Nursery Items, and other items that may be added from time to time."

The first question for consideration is whether the trade-mark "Blindcraft" is a valid trade-mark. The District Court was of the opinion that the term "Blindcraft" was descriptive of the handiwork of the blind and hence was available to anyone to describe the products of blind workmen. The court regarded "Blindcraft" as closely analogous to a geographical name.

The Trade-Mark Act of 1905, c. 592, § 5, 33 Stat. 725, 726, 15 U.S.C.A. § 85, provides: "* * * That no mark which consists * * * merely in words or devices which are descriptive of the goods with which they are used, or of the character or quality of such goods, or merely a geographical name or term, shall be registered * * *."

It is true that the trade-mark "Blindcraft" suggests that an article so marked was made by blind workers. The term "Blindcraft", however, is not specifically descriptive of any of the goods produced by the plaintiff or by the defendant or of the character or quality of such goods. The label "Blindcraft" upon a broom does not describe the broom. With respect to it, the mark is a fanciful, nondescriptive term.

In the case of Henry Muhs Co. v. Farm Craft Foods, Inc., D.C.E.D.N.Y., 37 F.Supp. 1013, Judge Galston held that the term "Farmcraft" as applied to farm products was a valid trade-mark. He said (page 1015 of 37 F.Supp.): "The validity of the term Farmcraft as a trade-mark is attacked as descriptive because both the words Farm and Craft are said to be general terms and available to the public. But the combination of two descriptive components into a single coined, arbitrary and fanciful word may be a perfectly valid, technical trade-mark. The term must be considered in its entirety. The word Farmcraft does not describe cheese nor any of the other products to which the plaintiff applies the term. At most it is a suggestive term. The distinction between words which are descriptive and those which are merely suggestive is noted in Le Blume Import Co., Inc., v. Coty et al., 2 Cir., 293 F. 344. `Craft' is a word that has been employed in combination in frequent registrations in the United States Patent Office, in such instances as `Seacraft' for fish, `Pancraft' for flour and `Musiccraft' for phonograph records." The District Court, in the instant case, thought that there was a distinction between the descriptiveness of "Farmcraft" and that of "Blindcraft". The difference between the two terms we regard as insubstantial. One is suggestive of products of the farm, and the other is suggestive of products of the blind.

The case of Wolf Bros. & Co. v. Hamilton-Brown Shoe Co., 165 F. 413, which arose in this Circuit, bears some analogy to this case. Two of the judges of this Court who heard the Wolf Bros. case thought that the trade-mark "The American Girl" as applied to women's shoes was geographical and descriptive. Judge Walter H. Sanborn, who dissented, thought that the trade-mark was neither geographical nor descriptive. He said (page 418 of 165 F.): "`The American Girl,' when applied to a shoe, is, in my opinion, an arbitrary and fanciful name, and hence constitutes a valid trade-mark, when it comes to designate the origin or manufacture of the shoe. It was not a geographical description of the shoe, because it does not state or indicate that it was made, or sold, or used, in America. It was not, when first applied by the complainant to the shoe, and before he had taught the trade its meaning, descriptive of the shoe, or of its materials or characteristics (and that is the true test — Wellcome v. Thompson & Capper, 1 L.R.Ch.Div.1904, 736, 742, 749, 750, 754; Keasbey v. Brooklyn Chemical Works, 142 N.Y. 467, 471, 474, 475, 476, 37 N.E. 476, 40 Am.St.Rep. 623), because it described nothing but a girl, and the term `American Girl' was just as descriptive of a coat, or a hat, or a glove, or a car, or an engine, or any other manufactured article, as it was of a shoe; that is to say, it was not descriptive of a shoe in any way whatever. It was nothing but an arbitrary, fanciful term, which the complainant, by means of its advertisements and its use, caused to indicate to the trade that the shoe to which it was applied originated in the complainant's shops and was made by it."

The Supreme Court, in reversing this Court, in Hamilton-Brown Shoe Co. v. Wolf Brothers & Co., 240 U.S. 251, at pages 256, 257, 36 S.Ct. 269, at page 271, 60 L.Ed. 629, said: "* * * We do not regard the words `The American Girl,' adopted and employed by complainant in connection with shoes of its manufacture, as being a geographical or descriptive term. It does not signify that the shoes are manufactured in America, or intended to be sold or used in America, nor does it indicate the quality or characteristics of the shoes. Indeed, it does not, in its primary signification, indicate shoes at all. It is a fanciful designation, arbitrarily selected by complainant's predecessors to designate shoes of their manufacture. We are convinced that it was...