Warner Brothers Company v. Jantzen, Inc.

• Decision Date: 12 November 1957
• Docket Number: No. 42,Docket 24567.,42
• Citation: 249 F.2d 353
• Parties: The WARNER BROTHERS COMPANY, Plaintiff-Appellant, v. JANTZEN, Inc., Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

249 F.2d 353 (1957)

The WARNER BROTHERS COMPANY, Plaintiff-Appellant, v. JANTZEN, Inc., Defendant-Appellee.

No. 42, Docket 24567.

United States Court of Appeals Second Circuit.

Argued October 10, 1957.

Decided November 12, 1957.

Harry R. Pugh, Jr., New York City (E. Cummings Sanborn and Donald E. Degling, New York City, on the brief), for plaintiff-appellant.

Harry Cohen, of Levisohn, Niner & Cohen, New York City (Edwin Levisohn, of Levisohn, Niner & Cohen, New York City, on the brief), for defendant-appellee.

Before CLARK, Chief Judge, and LUMBARD and MOORE, Circuit Judges.

PER CURIAM.

The plaintiff asks too much in seeking a private monopoly in the common word "allure" as applied to certain articles of feminine adornment and apparel. As the court found on competent evidence, this word or coined words derived therefrom "have, for a long period of years, been utilized as advertising for various types of feminine accoutrements such as girdles, bust pads, hosiery, swim suits, coats, sweaters, dresses, skirts, undergarments and the like, by both the defendant and other manufacturers." 150 F.Supp. 531, 533. Plaintiff relies on a trade-mark registered in 1932-33, but even then it betrayed some weakness in finding it necessary to embellish the common word to contrive the more fanciful "A'Lure" as the mark for its brassieres. But in so crowded a field of competitive advertising as that for the trade in women's goods, where rival claims are pressed continuously without let or pause over the air and through the printed page, it is not conceivable that consumers lack awareness of the existence of the trade rivalry involved. Nor, we apprehend, are there buyers still so naive as to regard the quite differing "A'Lure" and "Curvallure" brassieres as inevitably the product of a single manufacturer, even without the added factor found that defendant did not use its coined word alone, but always joined it with its own widely known trade-mark consisting of the name "Jantzen" and a representation of a diving girl. Insistent American advertising, whatever its faults, has surely induced a certain degree of sophistication and wariness in us all. Accordingly we agree with Judge Cashin's conclusion of noninfringement and accept his convincing opinion, D.C.S.D.N.Y., 150 F.Supp. 531, 533-534, as our own.

Affirmed.

LUMBARD, Circuit Judge (dissenting).

In my opinion the policy of our trademark laws, and the increasing awareness of the desirability of guarding the public against possible confusion regarding the origin of merchandise and at the same time protecting from commercial piracy the rights which the trademark laws are designed to create and protect, require that we resolve any doubts in favor of those who own and use valid trademarks. Warner Brothers should be protected in their right to use "A'Lure" in the promotion and sale of their brassieres; the public should not be subjected to the possible confusion which may be caused by Jantzen's use of "Curvallure" to sell their competing products.

Warner Brothers Company is the owner of the trademark "A'Lure" which it first registered for brassieres in 1933, and continued by renewal in 1953. It has used that mark since 1932. The District Court has found the mark to be valid, but it has ruled that it was not infringed by Jantzen's use of "Curvallure" in advertising and marketing its brassieres. Although Jantzen contested the validity of the trademark in the District Court there is no cross-appeal from this finding, which my brothers accept. Therefore the only question is whether the plaintiff's valid trademark was infringed.

Since the District Court rested its finding of non-infringement primarily on the visual and phonetic dissimilarities between the trademarks themselves, this Court need not accord the conclusions reached below as great weight as is ordinarily required. We "are in as good a position as the trial judge to determine the probability of confusion." Miles Shoes, Inc., v. R. H. Macy & Co., Inc., 2 Cir., 1952, 199 F.2d 602, certiorari denied 1953, 345 U.S. 909, 73 S.Ct. 650, 97 L.Ed. 1345.

The similarity of "Curvallure" to the plaintiff's "A'Lure" is such as to make it probable that some prospective customers may be confused or deceived as to the source of the goods. While there is some phonetic dissimilarity, the similarity is significant. Both words are the products of the advertiser's imagination and they seek to benefit from a feminine predilection for French fashions by appearing to be French both visually and phonetically. See La-Touraine Coffee Co. v. Lorraine Coffee Co., 2 Cir., 1946, 157 F.2d 115, certiorari denied 1946, 329 U.S. 771, 67 S.Ct. 189, 91 L.Ed. 663. Both words apply to nearly identical products and both use the same root word "allure." The brassiere industry has many styles of a single product. Even if a customer should think that "Curvallure" and "A'Lure" identified different styles of brassieres, there is considerable possibility that the customer would believe that the two marks designate different styles from the same source.

Nor does the use of the word "Wa...