Johnson & Johnson v. Bauer & Black

JENTvTXS, Circuit Judge. We Rave readied a conclusion upon the evidence in this case directly opposed to the finding of the court below. It sufficiently appeared by the testimony that the goods of the appellant have come to be known, and are offered, ordered, and sold, as “lied Cross Plasters”; and we cannot but think that the Maltese cross adopted by the appellee, in so far as it contains a red circle, lias a tendency to promote confusion, and will interfere with the legitimate trade of the appellant. It may be true that those engaged in the trade and acquainted with the manufactures of both parties would not he deceived; but as the goods of the appellant have come to be known as “Red Cross Plasters,” and notwithstanding a discriminating examination would detect the distinctions in the trade-marks, the casual observer might easily be mistaken, and imposition would be easy. Tim red cross speaks to the eye, and the article being known by that designation speaks also to the ear by that name. It is the one peculiar and commanding feature imposed upon the package to designate its origin, and, in the absence of critical examination, the one manufacture may readily he imposed upon the purchaser desiring the other. This is peculiarly irue where, as here, the mark is displayed upon the package containing the articles, and not upon the article itself. In Pillsbury v. Flour-Mills Co., 24 U. S. App. 395, 64 Fed. 841, and 12 C. C. A. 432, we observed with respect to the ground upon which courts of equity interfere in such cases that: “Disguise defeats ilie very end and object of legitimate competition, which is the free choice of the public. One. may not legally use means, whether marks or oilier indicia:, or even his own name, wiih the purpose and to the end of selling his goods as the goods of another. If such means tend to attract to himself ihe trade that would have ¡lowed to ihe person previously accustomed to use them, their use will be restrained by the law.” And we also (here said: “A specific article, of apxtroved excellence comes to be known by certain catchwords easily retained in memory, or by a certain picture which the eye readily recognises. The purchaser is required only to use that care which persons ordinarily exercise under like circumstances. He is not bound to study or reflect, he acts upon the moment lie is without the opportunity of comparison. It is only when the difference is so gross that no sensible man acting on the instant would be deceived that it can be said that the purchaser ought not to be protected from imposition, indeed, some cases have gone to the length of declaring that the purchaser has a right to be careless, and that his want of caution in inspecting brands of goods with which he supposes himself to be familiar ought not to be allowed to uphold a simulation of a brand that is designed to work a. fraud upon the public. However that may be, the imitation need only to be slight, if it attaches to what is most salient, for the usual inattention of a purchaser renders a good will precarious if exposed to imposition.” Within these principles, we cannot doubt that the use of the red Maltese cross upon the. goods of the appellee is wrongful. If a less quantity than a full package is ordered under the name of “Red Cross Plasters,” there would be no means of discovering the imposition upon the purchaser, the trade-mark not being attached to the goods themselves. If full packages of Red Cross plasters be ordered by one knowing of and desiring the goods of the appellant, a package of the appellee’s goods bearing this salient feature of the red cross [664] would be well calculated to deceive. The red crosses being the distinguishing marks of the goods of both parties, it would naturally result that the goods of each would come to .be known, as the evidence shows the appellant’s goods have come to be known, as “Red Cross Plasters,” and such infringement upon the appellant’s rights ought not to be permitted. Thus, in Seixo v. Provezende, 1 Ch. App. 192, it was said: “If the goods of a manufacturer have, from the mark or device ho 1ms used, become known in the market by a particular name, I think that the adoption by a rival trader of any mark which will canse his goods to bear the same name in the market may be as much a violation of the rights of that rival as the actual copy of his device.” In one case before the United States patent office there was an interference with respect to two trade-marks for bams, the one of which consisted of the word “Bouquet,” and the other of a bouquet of flowers; and the one was held, and we think properly, an infringement upon the other, because, as stated by Mr. Brown in his work upon Trade-Marks (section 449), while it was true that there was an utter lack of physical resemblance, and tlie one delineation could not be mistaken for the other, yet the test is: “Would the use by different houses of the two things cause confusion? The ear is the medium to mislead the purchaser. lie might ask this question, ‘Have you the bouquet ham?’ and either of the traders could truthfully reply in the affirmative. The picture and the word could not lawfully co-exist as marks for rivals dealing in the same class of merchandise.” So, also, in Read v. Richardson, 45 Law T. (N. S.) 54, the complainant’s beer had acquired, because of the maimer of its identification, the name of “Bog’s Head Beer.” The label consisted in part of the representation of a dog’s head. The defendant used a label upon bis beer utterly unlike complainant’s, but consisting in part of a dog’s head, but the representations were wholly unlike. Tin* master of the rolls observed: “Of course, they are both dogs and dog’s heads, but I think the resemblance stops there. They are differently colored. One is yellow and white, and the other is brown and tan. They are a very different kind of dog, — remarkably different. This bulldog’s head is a most emphatic bulldog's head, whereas the terrier is a remarkably mild species of terrier. They are very different animals indeed. The terrier looks somewhat like a eat. It is a very mild specimen. The dogs, too, have different collars on. I don’t think that ordinary people would take one of these for the other.” Yet, notwithstanding, the court of appeals sustained the complainant’s right, Lord Justice Brett asserting: “If the goods of a manufacturer have, from a, mark or device which has become known in the market, acquired a particular name, the adoption by a rival trader of any mark which will cause his goods to bear the same name in the market is a violation of the rights of his rival.” And Lord Justice Cotton observes: “It merely comes to this: Is it possible from the use of this label tliat the defendant’s beer may be called or be passed off on unwary or ignorant pur.chasers as ‘Dog’s Hoad Beer’?” The cases of Reddaway v. Banham [1896] App. Cas. 199, Saxlehner v. Apollinaris Co. [1897] 1 Ch. 893, and N. K. Fairbank Co. v. [665] R. W. Bell Manuf’g Co., 45 U. S. App. 190, 77 Fed. 869, and 23 C. C. A. 554, may profitably be consulted in tbis connection. It lias been urged to our attention by supplemental brief that the trade-mark of the appellant is in the nature of a false representation, inducing the. public to purchase and deal with the article under the belief that it is an article manufactured by the International Rod Cross Society, or which had its sanction and indorsement. No such defense is asserted by the answer, nor are we advised that the International Red Cross Society, which we understand to be a society composed of charitable and benevolent individuals, associated to relieve suffering upon the battle held, and to mitigate the horrors of war, has ever engaged in the production and sale of medical and surgical plasters. Unless the matter be brought to our attention in proper pleadings and by proper proofs, we are not at liberty to consider the suggestion. Bell v. Bruen, 1 How. 187; Badger v. Ranlett, 106 U. S. 255, 1 Sup. Ct. 346, 350; Burbank v. Bigelow, 154 U. S. 558. 14 Sup. Ct. 1163. The decree will he reversed, and the cause remanded, with direction to tlx1 court below to enter a decree in favor of the appellant here (complainant below), restraining the use1 of the Maltese or other description of cross of red color upon the goods and packages of the appellee, and for an accounting with respect to the damages which have accrued by reason of the use of the infringing design.