Sunlite Bakery v. Homekraft Baking Co.
| Decision Date | 13 July 1953 |
| Docket Number | No. 15476,15476 |
| Citation | 259 P.2d 711,119 Cal.App.2d 148 |
| Court | California Court of Appeals Court of Appeals |
| Parties | SUNLITE BAKERY v. HOMEKRAFT BAKING CO., Ltd. |
Rea, Jacka & Frasse and Irvin A. Frasse, San Jose, for appellant.
A. W. Carlson and M. F. Hallmark, Oakland, for respondent.
This is an action by Sunlite Bakery, a corporation, to enjoin Homekraft Baking Co., Ltd., a corporation, from using wrappers on its bread similar to those used by Sunlite on its bread, in the territory served by the latter for some fourteen years, alleging that Homekraft wrappers are so similar to Sunlite's as to mislead the public, that Homekraft recently commenced the use of these similar wrappers with intent to deceive the public into buying Homekraft bread under the impresssion and belief it is Sunlite bread, and that the public is buying Homekraft bread so wrapped under the mistaken belief it is Sunlite bread, to the great and irreparable damage of Sunlite.
The trial court found against Sunlite on these issues and gave judgment for Homekraft. Sunlite has appealed.
Sunlite does not rely upon any trade mark or copyright law. It bases its claims upon the law of unfair competition. 1 Our examination of the record convinces us that Homekraft's wrapper is not so similar to Sunlite's as to constitute unfair competition.
The distinguishing feature of Sunlite's wrapper is its red end,--solid red across one end and on all sides for about three inches from that end. Between this and the other end, on the top and on each side, the word 'Sunlite' in black letters 1 1/4"' high is displayed on a white background. The Homekraft wrapper has a white end bearing a rooster design, a red rooster in a red circle one inch in diameter. Attached is a 2 3/4"' X 2 3/4"' blue and white sticker displaying the words 'Fresh,' 'Homekraft' and 'Bread.' Near this end, extending across the top, bottom and both sides, there is a red band 3 5/8"' wide, upon which the red rooster design appears in white circles 2 3/4"' in diameter; within each circle the words 'morning' and 'fresh' also are displayed in blue. In grocery stores and markets Sunlite loaves are customarily displayed in racks with the red ends pointing toward the aisles. When Homekraft started distributing in this area, its bread was similarly displayed in racks. The ultimate decision as to stacking bread in a store is that of the manager of the store, but he rarely disturbs the display as set up by the distributor's driver-salesman.
Plaintiff produced four witnesses who had made one purchase, each, of Homekraft bread under the mistaken impression it was Sunlite. Each picked up a loaf of Homekraft along with other groceries. Three discovered the error by the time he or she reached the cashier's counter; one, as soon as he reached his auto outside. Three were in a hurry at the time. The fourth thought the loaf he had mistaken for Sunlite had a brown end instead of Homekraft's white end. At the trial none of the four had any difficulty in distinguishing between the Sunlite and Homekraft wrapped loaves, each viewing them from a distance of about nine feet.
We agree with the trial court that Homekraft's wrapper was not sufficiently similar to Sunlite's to meet the test of a "similarity which would be likely to deceive or mislead an ordinary unsuspecting customer". Academy of Motion Picture Arts and Sciences v. Benson, 15 Cal.2d 685, 692, 104 P.2d 650, 653; quoted in American Distilling Co. v. Bellows & Co., 102 Cal.App.2d 8, 21, 226 P.2d 751. Indeed, with examples of the two wrappers attached to and made a part of the complaint, as they were, we might almost say as a matter of law that the buying public could not be misled. See Scudder Food Products v. Ginsberg, 21 Cal.2d 596, 134 P.2d 255.
We adopt as our own, the opinion rendered by Judge Del Mutolo who presided at the trial: 'There are two rules of law which stand out above all others to guide me in the decision of this case. The first is found in the case of American Automobile Ass'n v. American Automobile Owners Ass'n, 216 Cal. 125 [13 P.2d 707, 710, 82 A.L.R. 699], which reads as follows: 'Would a person exercising that care, caution and power of perception which the public may be expected to exercise in the matter which it has in mind,...
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