Heinz v. Lutz Bros. , 146 Pa. 592 ( 1892 )

Opinion,

Mr. Chief Justice Paxson :

This bill was filed by the plaintiffs in the court below, to restrain the defendants from selling packages of fruit preserves, fruit butters, or jellies having thereon any labels resembling the labels of the plaintiffs. The latter does not claim that there has been a violation of a technical trade-mark, but that the labels used by defendants so closely resemble those of the plaintiffs that purchasers are likely to be deceived. Both parties, plaintiffs and defendants, are engaged in the same line of business, the former in the city of Pittsburgh, the latter in the city of Allegheny, and both have adopted and used a particular style of label to mark their goods. In addition, the defendants use the same style of pail in which to pack their goods as the one used by plaintiffs. This style of pail, however, was admitted to be in common use by other persons engaged in the same trade, and it is not a feature in the case.

No fault is found with the learned master’s findings of fact. It is only his conclusions from facts found that are assailed.

Before proceeding to discuss the law of the case, it is proper to refer to some of the master’s findings of fact.

In paragraph 10 he finds: “ The defendants have been engaged in the manufacture and sale of the line of goods known as sour goods for about seven years. In January, 1890, they made arrangements to go into the line of sweet goods, and instructed M. J. Nevins, then the agent of the Forbes Lithograph Co., to have a sketch prepared for a label suitable for such goods. Mr. Nevins exhibited a variety of samples of labels that were made by the company he represented, and among them the plaintiffs’ label now in suit. The defendants gave Mr. Nevins an idea of the kind of label they desired, and specifically instructed him to avoid imitation of plaintiffs’ labels. A sketch was prepared pursuant to the instructions of Mr. Nev-ins, and submitted to and approved by the defendants.”

In paragraph 13 he finds: “ The similarity of the labels has never deceived any one into buying the defendants’ goods, under the belief that they were the goods of the plaintiffs.”

In paragraph 14 he finds: “ The defendants were not guilty of any fraudulent intention to injure the plaintiffs’ trade, or impose their goods upon the public as the goods of the plaintiffs, by the adoption and use upon their packages of labels like the sample marked exhibit B. Whatever inference of such fraudulent intention may be drawn from the similarity of the two labels upon inspection and without explanation, is fully and satisfactorily met by the testimony of Julian J. Lutz and M. J. Nevins, from which I find that the lithograph company which makes the labels of both parties prepared the defendants’ label, and pursuant to instructions given by the defendants in good faith, to prepare their labels in such manner as not to imitate or infringe the plaintiffs’ labels.”

A large number of witnesses were examined before the master, and the weight of the testimony clearly is that a person of ordinary intelligence would not be likely to be deceived or misled by the defendants’ labels. The master finds that no one in fact has been deceived. In regard to the testimony, he says in his opinion : “ The weight of opinion, as expressed by the witnesses, is clearly to the effect that a purchaser who is capable of reading, and who would actually read the name and brand on defendants’ labels, would not be deceived thereby into the belief that he was buying the plaintiffs’ goods,” etc. Notwithstanding this, the learned master decides by an inspection of the two labels, that that of the defendants is an imitation, and calculated to deceive a purchaser. That the learned judge below felt the pinch of this part of the case is apparent from the opening sentence of his opinion, where he says: “ This is a close case. Aside from the master’s report and findings, this court would probably have found that the labels of defendants are not likely to deceive the ordinary purchaser.”

It is not enough that there may be a possibility of deception. The offending label must be such that it is likely to deceive persons of ordinary intelligence. It is not necessary to show that persons h^ve been deceived, yet the finding of the master that no on e has been, deceived, although defendants’ label has been in use for some time in the same vicinity as that of the plaintiffs, is certainly strong evidence in support of defendants’ allegation that their label is not likely to deceive.

Dixon Crucible Co. v. Guggenheim, 7 Phila. 408, decidedby the writer when sitting in the Common Pleas of Philadelphia, has been so generally accepted as law that I may be excused for giving a brief extract from the opinion in that case:

“ That a similarity between two trade-marks used by different manufacturers for their goods, although of such a character as to induce a belief in the mind of the public that they belong to and designate the goods of the same manufacturer or trader, is not of itself sufficient ground for the prohibition of the use of such trade-mark by him who did not first adopt it. That similarity, to entitle the originator to the protection of the law, must be such as to amount to a false representation, not alone that the two articles have the same origin, but that the goods to which the simulated mark is attached, are the manufacture of him who first appropriated the trade-mark.”

A court of equity will not restrain a person from using a device, on the ground that it infringes plaintiffs’ trade-mark, unless it is so similar in appearance that any person using such reasonable care and observation as the public generally are capable of using, and may be expected to exercise, would mistake the one for the other: Gilman v. Hunnewell, 122 Mass. 139; Desmond’s App., 103 Pa. 126. In trade-marks, in order to entitle the plaintiffs to relief by injunction, the resemblance must be such that ordinary purchasers, dealing with ordinary caution, are likely to be misled: McLean v. Fleming, 96 U. S. 245. The court is not bound to interfere where ordinary attention will enable' the purchaser to discriminate: Tallcot v. Moore, 6 Hun 106. And it was said by the Court of Errors and Appeals of New York in Popham v. Cole, 66 N. Y. 69: “ The question in this, as in every other similar case, is whether there is such resemblance between the two as to deceive the purchaser using reasonable caution.” So in the case of Merrimac Co. v. Garner, 4 E. D. Smith 387, the court says: “ The courts are not bound to interfere when ordinary attention will enable a person to discriminate. We must assume that dealers and consumers have ordinary intelligence, and adopt reasonable precautions against imposition and fraud.”

An inspection of the respective labels does not impress us as it did the learned master. Both labels are colored, but in every feature except the fruit the colors are widely different. The fruit is of course highly colored, to make it look as luscious as possible; but no one trader in this article has, or can have a monopoly of pears, peaches, cherries, plums, strawberries, etc. Any dealer in fruit has the right to put a picture of these fruits upon his labels, and to make them as attractive as possible, and the fruit in one label is very likely to resemble that in another. The complaint here is in the arrangement. In this there is no doubt a general resemblance, yet with points of difference. But, in that part of plaintiffs’ trade-mark which he is entitled to claim as such, there is no resemblance whatever. The two are as unlike as day and night. They differ in style, color, and device. The one is the “ Keystone Brand,” and the other the “ Diamond Brand,” and the name of each proprietor is stamped upon his respective label in large letters and in different colors. It is difficult to see how any one with but a glimmering of intelligence could be deceived. We have the fact found that no one has been misled in the past, and we feel quite sure that no one will be deceived in the future.

The decree is reversed and the bill dismissed, at the costs of the appellees.