Manitowoc Malting Co. v. Milwaukee Malting Co.

Wistslow, J". The trial court concluded that the plaintiff was entitled to the relief sought on two grounds: first, because the defendant had infringed upon the plaintiff’s trademark; and, second, because the facts showed unfair competition in trade. In the view we have taken of the. case, we find it unnecessary to decide whether the plaintiff’s device constitutes a valid trademark, and our judgment herein is not to be construed as affirming this finding. We are entirely satisfied, however, that the court was right in adjudging the use of the defendant’s device to be unfair competition in trade, and upon that ground the judgment will be affirmed. Unfair competition in trade is not confined to the imitation of a trademark, but takes as many forms as the ingenuity of man can devise. It may consist of the imitation of a sign, a trade-name, a. label, a ■wrapper, a package, or almost any other imitation by a business rival of some distinguishing earmark of an established business, which the court can see is calculated to mislead the public and load purchasers into the belief that they are buying the goods of the first manufacturer. The first question is whether there is an imitation in fact, and this must be determined by inspection [547] of the rival symbols or devices. It is not to be expected, of course, that there will ever be an exact copy. The imitator will always seek to introduce enough differences to justify a claim that there has been no imitation, while incorporating enough similarities to carry the general effect of the original design to the mind of the unwary purchaser. Viewing the two devices in the present case> and remembering that the plaintiff’s device had been in use upon its cars, its sacks, its cards, billheads, and advertising matter, and a large and profitable business built up thereunder, for a year before the defendant’s device was adopted, we can entertain no doubt of the fact that a clear attempt to imitate is shown. The prominent features of the plaintiff’s device are the large figure 8 and the encircling heads of barley. Turning to the defendant’s device, we find both of these features in substantially the same form, though perhaps more artistically carried out in color. It is true that the words incorporated with the figure 8 are different, but it is significant that both sets of words convey exactly the same idea, namely, that the malt is grown eight days. The striking features of both devices are the circular shape, the barley heads, and the large figure 8. The conclusion of imitation from the similarity in these respects is irresistible. Uor is that conclusion at all shaken by the difference in the words attached, or the fact that the defendant has incorporated its name in the device. The fact of imitation being established, and such.imitation being well calculated to deceive, it is not necessary to show by specific proof that purchasers have been actually deceived. A court of equity will act before the injurious consequences of the unfair competition have made themselves manifest, if the imitation is established, and the consequent deception seems certain to result. Collinsplatt v. Finlayson, 38 Fed. 693. It is urged that because the malt is only sold to brewers [548] and distillers, and not retailed to the public, there is no reasonable probability of deception; also that because the defendant has only used the device upon sample cans, cards, billheads, and letter heads, and not upon cars or sacks, purchasers are not likely to be misled. Both of these contentions only go to the degree of the deception and consequent injury. If the plaintiff is entitled to protection against unfair competition at all, it is entitled to protection against unfair competition in a small way as well as in a large way, provided it be substantial. By llie-Oourt.- — Judgment affirmed.