W. & H. Walker, Inc. v. Walker Bros. Co., 1481.

• Decision Date: 15 March 1921
• Docket Number: 1481.
• Citation: 271 F. 395
• Court: U.S. Court of Appeals — First Circuit
• Parties: W. & H. WALKER, Inc., et al. v. WALKER BROS. CO. [1]

271 F. 395

W. & H. WALKER, Inc., et al. v. WALKER BROS. CO. ^[1]

No. 1481.

United States Court of Appeals, First Circuit.

March 15, 1921

George R. Nutter, of Boston, Mass. (Jacob J. Kaplan, Greta C Coleman, and Dunbar, Nutter & McClennen, all of Boston Mass., on the brief), for appellants.

Charles D. Woodberry and Robert Cushman, both of Boston, Mass. (Isaac E. Simons and Roberts, Roberts & Cushman, all of Boston Mass., on the brief), for appellee.

Before BINGHAM and JOHNSON, Circuit Judges, and ALDRICH, District judge.

ALDRICH District Judge.

Fortunately we have no occasion to consider the merits or the demerits of the product in which the two Walker concerns are dealing.

This is an alleged unfair trade competition case.

It is not one, however, in which either of the parties resorted to similitude of names for unfair purposes, or of similitude of labels, or markings. This is so, because the Pennsylvania Walkers founded a business in 1837 under the name of William & Hay Walker, who were succeeded by their sons William and Hay Walker, Jr., and the business went on as W. & H. Walker, until 1919 (if the date is right), when they were incorporated under the same name.

The Boston Walkers' business was under the name of Walker Bros. Company of Boston.

Each party carried on its business with the name of Walker, or Walkers, in the field of commerce, without knowing of the existence of the other-- and, as the District Court says, without any fraud, intentional or unintentional, upon each other, and without any substantial confusion or misleading of the consuming public-- until quite recently, when the Boston Walkers discovered that the Pennsylvania Walkers were introducing their goods through jobbers and wholesale dealers.

The defendants used the Kay Chemical Company's label on some of their extracts, and for a time as to products the word 'Kay,' etc., was chiefly put upon soaps, and to some extent upon extracts, and it is true in shipping some of the extracts to the New England trade, that the Pennsylvania Company used products which had been made ready for the Kay company by pasting the Walker label over the Kay label. We do not think, however, that this cuts any figure in the case.

Speaking generally, for a long period the Pennsylvania company has carried the name of Walker on its extract packages.

It is not suggested that the names of the Pennsylvania labels were materially changed on their products-- at least the evidence does not show that they were-- except that on the Pennsylvania Walkers' product were superimposed, through the instrumentality of an attractive design, the words: 'Sewickley Home for Crippled Children. W. & H. Walker, Authorized Makers and Distributors.'

This, of course, was to attract attention to their product through connecting it with the idea of a charitable purpose; but we see nothing vicious in that feature, because it was a worthy charity, and because it is quite common-- and probably permissible-- in modern trade to offer inducements to members of the public, through coupons, prizes, and trading stamps, to be handed out upon certain conditions in respect to purchasers.

As to the Walker names, which were the proper, or original, names of the Walkers interested in both instances, such adoption was quite natural and reasonable, and the Pennsylvania Walkers were in the field of commerce a number of years earlier than the Boston Walkers; the Pennsylvania Walkers having started their business in 1904, while the Boston Walkers started theirs in 1915.

The position of the Boston Walkers is that under the circumstances they are entitled to the wholesale field in a particular locality, because they were first in that field under the Walker name, and that the entrance of the Pennsylvania Walkers into the wholesale field, though under a name which they have been rightfully using for a long period in the retail business, is unfair competition, because the Boston concern says, in effect, that their wholesale business should not be interfered with under the circumstances which we have described.

We look upon that view as unsound, because we think that it would interfere with the fundamental rights of reasonable trade competition, and with reasonable and commendable purposes of trade enterprise through expansion. Of course, it is quite true that business enterprises and expansions, through instrumentalities in the wholesale and jobbing fields, might be under such circumstances of bad faith, with or without involving deceptive devices, as to...