Ungles-Hoggette Mfg. Co. v. Farmers' Hog & Cattle Powder Co.

• Decision Date: 20 March 1916
• Docket Number: 4453.
• Citation: 232 F. 116
• Parties: UNGLES-HOGGETTE MFG. CO. v. FARMERS' HOG & CATTLE POWDER CO.
• Court: U.S. Court of Appeals — Eighth Circuit

232 F. 116

UNGLES-HOGGETTE MFG. CO. v. FARMERS' HOG & CATTLE POWDER CO.

No. 4453.

United States Court of Appeals, Eighth Circuit.

March 20, 1916

Samuel P. Davidson, of Tecumseh, Neb., for appellee.

Before ADAMS and CARLAND, Circuit Judges, and TRIEBER, District Judge.

ADAMS Circuit Judge.

This was a bill to restrain infringement of a trade-mark consisting of the word 'Dridip,' which the plaintiff Ungles-Hoggette Manufacturing Company, claims to have adopted and appropriated as a trade-mark, to indicate the origin and ownership of a certain lice and vermin destroyer manufactured by it. It alleged in its bill that the defendant Farmers' Hog & Cattle Powder Company, infringed upon its trade-mark by using the words 'Dry-Dip,' or 'Farmers' Dry-Dip,' on packages of lice and vermin destroyer manufactured by it.

Defendant denied that plaintiff had appropriated, or by use or otherwise had acquired, the right to the exclusive use of the word 'Dridip' as a trade-mark for its product, on the ground that that word, instead of indicating the origin and ownership of its product as it lawfully might, was descriptive of that product, and was not the subject of exclusive appropriation by plaintiff as a trade-mark. Defendant also denied infringement.

The District Court heard the proof and rendered a decree dismissing the bill. Plaintiff appeals.

The word 'dip,' as a noun, has a well-understood meaning. Any liquid preparation into which objects may be dipped or immersed, as for cleansing, coloring, lacquering, and the like, may be properly described as a dip. See 'dip' in Webster's International Dictionary and Funk & Wagnalls Dictionary. Such common use of the word 'dip,' as a noun, is conceded by plaintiff's counsel. In connection with animal husbandry this word, taken by itself, therefore signifies some liquid preparation, consisting of a mixture of parasiticides, like sulphur, coal-tar creosote, arsenic, or similar agents, into which animals infected with lice and other vermin may be plunged for treatment.

The word 'Dry-Dip,' employed in connection with animal husbandry, would presumptively mean some dry or powdered preparation intended to perform the same service. This proposition, however, is not left to presumption or speculation, as counsel specifically agreed (among other facts bearing on the case, which, in view of the conclusion reached by us, it is unnecessary to state), that 'the dry dip sold by the defendant and the dridip sold by plaintiff is a dry powder, and is used by sprinkling on the animal. ' So it appears that the dry-dip served the same purpose and accomplished the same result as the liquid dip, with an unimportant difference-- in their application. The infected animal is driven or plunged into the liquid dip, while the dry dip is sprinkled upon the infected animal. In view of these considerations, plaintiff certainly could not have appropriated the compound word 'Dry-Dip' as its trade-mark. Such a word would unquestionably have been accurately descriptive of the article sold or dealt in by it.

Does the fact that plaintiff misspelled the first member of its compound word, in such a way, however, that its necessary pronunciation is the same as 'Dry-Dip,' make the misspelled word any more available to exclusive appropriation by it? We think not. In Trinidad Asphalt Manufacturing Co. v. Standard Paint Co., 163 F. 977, 90 C.C.A. 195 affirmed by the Supreme Court in 220 U.S. 446, 31 Sup.Ct. 456, 55 L.Ed. 536, we had occasion to consider whether the plaintiff could secure a trade-mark in the word 'Ruberoid,' notwithstanding the conceded right of the public to make use of the word 'rubbero...