Mirrolike Mfg. Co. v. Devoe & Raynolds Co.

HOUGH, Circuit Judge. The action is brought on a technical trade-mark. It is between residents of the same state. Jurisdiction, is derived solely from the act of registration. What was registered was the word “Mirroiike,” printed in a peculiar manner and surrounded by an ornamental device. Such trade-mark plaintiff’s assign- or said had been “adopted-and used * * * for furniture, floor, and automobile polish.” Defendant has confessedly used the word “Mirrolac” as the name for a substance which it is said “stains and varnishes in one operation.” It further asserts that Mirro-lac, under favorable conditions, will “dry hard overnight with a high gloss.” I have no doubt that the two words are so much alike, and their use so similar, that, if plaintiff’s trade-mark is valid, defendant has infringed by using a substantial portion of it. It is argued that, since defendant uses nothing but the word, and in respect of design, style of printing, color, etc., there is no similarity between what plaintiff puts out and what defendant has produced, this ease is within Hutchinson v. Loewy, 163 F. 42, 90 C. C. A. 1. I do not think it necessary to pass on this point, for I shall assume, without holding, that plaintiff’s trade-mark is of such a nature that it can be infringed by the use of a word similar (within the eases) to Mirroiike, and that such infringement will exist irrespective of style of print, context, color scheme, and other extraneous or surrounding circumstances. This is certainly all that plaintiff could ask. Having made this assumption, I am of opinion that Mirroiike, as applied to a polish, is altogether too descriptive to be a valid trade-mark. On this fundamental finding there is little, if anything, to add to what I was privileged to say for the court in Hercules, etc., Co. v. Newton (C. C. A.) 266 F. 169. Mirroiike is more than suggestive; it is in my judgment “merely descriptive.” Therefore under the statute it is bad. ■ Plaintiff seems to me to be impaled on the horns of a dilemma; if it asserts that its trade-mark is good, because Mirroiike is peculiarly printed and surrounded by a diagram or ornamental scroll, then what the defendant has used does not infringe. But if it asserts (as it does) that its trade-mark is essentially the made-up word “Mirro-iike,” its trade-mark is bad, because descriptive only. Plaintiff’s motion is denied, and defendant’s is granted.