Coca-Cola Co. v. Glee-Nol Bottling Co.

WALKER, Circuit Judge. We concur in the conclusion reached hy the District Court that the evidence adduced was insufficient to furnish substantial support for the claim of unfair competition made by the bill. Bottles of the same size, shape, color, and general appearance as those commonly used as containers of the two drinks in ques 62 tion, that of the plaintiff, Coca-Cola, and that of the defendant company, Glee-Nol, are in general use as containers of many other drinks which are similarly dealt in. The name of the defendant company’s •drink is not at all like that of the plaintiff’s. The one drink is not like the other in either taste or odor. There are many other drinks on the market which have practically the same color as that of each of these two. There was no evidence at all having a tendency to prove that the defendant in any way undertook to mislead the dealers to whom alone it sells its drink, or to induce them to substitute Glee-Nol for Coca-Cola when the latter was called for; and there was no evidence of any conduct of the. defendant company from which it could be inferred that anything it did amounted to an imitation of any distinguishing feature of the plaintiff’s product or was intended to, or in fact did, beguile the public or any part of it into buying Glee-Nol under the impression that they were buying Coca-Cola, unless such evidence is found in that which went to prove that the name Glee-Nol was blown into the same parts of the bottles containing it at which ■the name Coca-Cola is found blown into the bottles generally, but by no means universally, used by the distributors of that.beverage, and that the letters forming the name Glee-Nol, where it appears on the bottles used by the defendant company, are of a style of script or type made in imitation of written letters similar to that used in displaying the name Coca-Cola on the bottles containing it. The .evidence failed to show that, prior to the time of the defendant company’s selection of the places on its bottles at which the name of its drink was blown in, corresponding places on their bottles had been in such general and exclusive use for the same purpose by the distributors of the plaintiff’s drink that the mere presence of a word, without regard to what it was, blown at those places into such bottles as the plaintiff’s drink was generally marketed in, had come to be accepted generally or to any appreciable extent as a reády means of identifying the beverage which a bottle contained as Coca-Cola and distinguishing it from any other beverage similarly served. And it was not made to appear that the use by the defendant company of the same style of script as that used for the name Coca-Cola on the bottles containing it resulted in there being any resemblance between the two names as they were respectively displayed other than such as exists between two written or printed words which are wholly different, except in so far as a letter or letters common to both are alike. The impression made by the evidence as a whole is that the respective products of the plaintiff and the defendant company, and the ways they are put up, are unlike in so many respects and are so readily distinguishable, and the points of resemblance are so few and of a kind so unlikely to create confusion, as to negative the conclusion that there was an imitation which was either intentional or deceptive and to indicate the improbability of any one being deceived into accepting Glee-Nol when he calls for Coca-Cola, unless he is so utterly unobservant when he gets and ■consumes such a beverage that a deception might with equal success be practiced upon him, whether there is or is not a resemblance in any identifying particular, between what he calls for and what he gets. A charge of unfair competition cannot be sustained by such evidence. 63 “Tiie essence of the wrong in unfair competition consists in the sale of the goods of one manufacturer or vendor for those of another, and if defendant so conducts its business as not to palm off its goods as those of complainant the action fails.” Howe Scale Co. v. Wyckoff, Seamans & Benedict, 198 U. S. 118, 140, 25 Sup. Ct. 609, 614 (49 L. Ed. 972); Coca-Cola Co. v. Branham et al. (D. C.) 216 Fed. 264. The decree appealed from is affirmed.