Squirrel Brand Company v. Barnard Nut Co.
| Decision Date | 13 October 1955 |
| Docket Number | No. 15264.,15264. |
| Citation | 224 F.2d 840 |
| Parties | SQUIRREL BRAND COMPANY, Appellant, v. BARNARD NUT CO., Inc., Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Wm. B. Spann, Jr., Atlanta, Ga., Francis W. Sams, Miami, Fla., Cedric W. Porter, Boston, Mass., Francis Browne, Washington, D. C., Alston, Sibley, Miller, Spann & Shackelford, Atlanta, Ga., for appellant. Mead, Browne, Schuyler & Beveridge, Washington, D. C., Heard, Smith, Porter & Chittick, Boston, Mass., of counsel.
Graham C. Miller, Miami, Fla., Miller, Pearson & Miller, Miami, Fla., for appellee. Armand J. Brissette, Jr., New York City, of counsel.
Before RIVES and CAMERON, Circuit Judges, and DAWKINS, District Judge.
This appeal presents the question whether the District Court was clearly erroneous in its finding that defendant, in using the picture of a squirrel on its labels and advertising, did not infringe plaintiff's registered trademark and did not unfairly compete with plaintiff. Squirrel Brand Company, appellant, as plaintiff below, sued Barnard Nut Company, Inc., appellee, defendant below, demanding injunctive relief and damages for claimed infringement of its "Squirrel Brand" Trademark and for unfair competition in connection with the manufacture and sale in interstate commerce of nuts, nut meats and candies. The action was based upon the claim that plaintiff had the sole right to use the figure of a squirrel along with the word "Squirrel" and its own trade name on nuts, nut products and candies, and that defendant infringed its registered trademark by the use of the similar figure of a squirrel as a trademark on its competing products.
The District Court entered its Findings of Fact and Conclusions of Law,1 finding that plaintiff was the owner of trademark registrations bearing the picture of a squirrel and the words "Squirrel Brand"; and that defendant likewise used the picture of a squirrel along with its name and catch phrase "Barnard's Nuttee Foods"; but that there would be no likelihood of confusion or mistake as to the source or origin of the goods produced by the respective parties; and that there was no infringement or unfair competition. The Court further found that defendant had advertised and sold its products in Florida prior to plaintiff's beginning business there. From the judgment entered for the defendant upon those findings, plaintiff appeals.
Appellant claims that the findings of the court below are clearly erroneous and that the evidence plainly shows that the use by appellee of the figure of a squirrel is an undoubted infringement of appellant's trademark giving rise to the likelihood of confusion and mistake as to the source or origin of the respective products; that indisputable documentary evidence required a finding as against purely oral testimony that appellee was not using its trademark in Florida prior to the beginning of appellant's business there. Appellant further refutes vigorously appellee's claim that the use of the figure of the squirrel was merely descriptive and not the proper subject of trademark registration.
A clear-cut issue of fact was developed in the court below with respect to each of the issues framed by the contentions of the parties. The case was tried by the same experienced judge who tried Pure Foods v. Minute Maid Corp., infra, so much relied upon by appellant; the hearing was a long one, both sides introducing many depositions and many witnesses to testify orally, and the exhibits totaled more than one hundred. At the conclusion of the hearing the court below entered its findings and conclusions, as set out above, and these must stand unless we can say that they were clearly erroneous. That we are not warranted in doing under the evidence before us.2
We have examined the documentary evidence, the testimony of the witnesses who gave their depositions and have compared and contrasted the oral testimony of the witnesses, ascribing to each kind of evidence the weight and merit according to standards clearly recognized in this court,3 and find that there is substantial credible evidence to support the court's finding in each instance, including the prior use of the squirrel image by appellee.
The field of trademark infringement and unfair competition has furnished a large body of litigation and the cases are almost without number. No good purpose will be served by trying to analyze them and to relate this case to those thought to bear a close resemblance to it. Both parties have done this in their briefs, and we have read the cases and have found none which is determinative of the questions here. Appellant cites many cases where injunctions have been granted and where findings have been made in favor of litigants claiming infringement. The trouble is that the court below found the facts here in favor of the appellee and against infringement. The court below did not render a written opinion, but it tried the case fairly and expertly and reached conclusions which we find to be quite consonant with the evidence before it.
It may be that the court below found it as difficult as we have to visualize as ubiquitous and peripatetic a creature as a squirrel, inured to the free life of a nomad, being leashed or hemmed in and made the subject of monopoly. Such an effort awakens mental reactions not unlike those which led this court to refuse to permit the word "Bama" to become the exclusive property of one manufacturer.4 It is noteworthy in that connection that appellant urges, as its basic position, that it has so pre-empted the field with its trademark that it can prevent any person from using any squirrel in any position in any portion of its printed matter in connection with any products which are competitive with appellants.
This contention fails to grasp that, fundamentally, deception, actual or probable, is the essence of an action for infringement or unfair competition.5 The test is whether there is a probability that the average person will be so confused by the use of the device complained of as to believe that the products offered by the infringer were produced by the trademark owner, — that there is likelihood that prospective purchasers will be misled to appellant's damage.6 The application of these tests to the facts before us do not lead to the conclusion that appellee was using a colorable imitation of appellant's trademark so as to bring about confusion or deception on the part of the average prospective purchaser.
We begin with the finding of the court below, established by clear and convincing evidence, that there was no guilty knowledge on the part of appellee, no purpose or intent to deceive or to attempt to pass off its goods as being those of appellant. While guilty knowledge or fraudulent intent are not essential elements of infringement of a trademark,7 they are entitled to consideration.8 Also, appellee has never used the name "Squirrel", so that there is no confusion of names with appellant's. Moreover, appellee has universally used its own name, projecting it into the circular background framing the squirrel image, and has stressed prominently its own coined phrase "Nuttee Foods".
The ordinary purchaser, buying under usual conditions and exercising the normal care used in such activities, would, upon looking at appellant's wares, be challenged by the words "Squirrel Brand" in bold letters and constituting the most conspicuous portion of appellant's label. The same purchaser, looking upon appellee's products, would normally find the words "Barnards Nuttee Foods" as constituting the heart of appellee's descriptive matter. The only thing common to both is the picture of a squirrel. The pictures used do not bear a marked similarity. Naturally both show the squirrel sitting, as squirrels have always of necessity sat, on its haunches with the nut in its forepaws. The court below held, and we agree, that the likelihood of confusion or deception is not present. We are unwilling to hold that, under the facts in this case, appellee cannot make use of the image of the cunning and engaging little vagrant so universally associated in the public mind with nuts.
While the court below did not make a finding with regard to whether the figure of a squirrel was common property by reason of being merely descriptive of appellee's business as a dealer in nuts and nut products, the parties argue this question vigorously here. Appellant argues that its adoption of the squirrel figure and the squirrel name represented a purely fanciful and arbitrary choice; while appellee contends that the squirrel as a symbol is reasonably indicative and descriptive of the nut business, and that a squirrel conveys to the public the instinctive impression and signification of nuts, and that this connotation or association is natural and universal.9 It is not necessary to go into a technical consideration of the exact meaning of the word "descriptive", as applied to this phase of infringement suits, but it is clear that, as related to the facts of this case, appellee's argument is much more convincing than that of appellant.
What we have said rejects also the idea of any secondary meaning as contended for by appellant as inhering in its trademark. Certainly the use of the name and the figure of the squirrel do no tend to bring to the public mind, not the product primarily but the producer, — a test frequently applied in considering whether there is secondary meaning.10
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