Judges: Murphy
Filed Date: 11/4/1949
Status: Precedential
Modified Date: 11/10/2024
The plaintiff corporation produces and sells an all-metal, collapsible clothes hanger and the defendant corporation is in the same business. The plaintiff here seeks injunctive relief to restrain the defendant in the use of its display cards, especially with reference to the size, wording, lettering and pictures on said cards. The plaintiff also seeks to restrain the defendant from using a continuous reel motion picture with certain scenes and dialogues which the plaintiff claims are so similar to the plaintiff’s motion picture entitled “ Closets Crowded? ” that the defendant’s picture constitutes an act of unfair competition. In addition, plaintiff seeks to restrain the defendant corporation from the use of any symbol, mark, design or device so nearly like that used by the plaintiff as to deceive the plaintiff’s customers and the public generally.
At the outset it should be stated that the plaintiff does not claim that its collapsible clothes hanger or space saver is a patented article, nor does the plaintiff rely on any copyright laws or regulation with reference to the display cards or motion picture.
The clothes hanger or space saver produced and marketed by both the plaintiff and defendant are so near alike as to be almost identical. The products of both litigants were put into evidence and, except for certain details, are similar. The retail price of each is $1.49. The products are distributed for sales purposes in substantially the same manner, one of the main channels of distribution being department stores. The identical means of advertising are used to promote the sale of both the plaintiff’s and defendant’s product, to wit, newspapers in a rather limited degree, manual demonstrations by sales people, motion picture exhibitions in which the type of each product and its uses are dramatized, and display cards to which the product of each litigant is attached.
The plaintiff, through its president, introduced into evidence its display card as well as the display card of the defendant corporation. There is a similarity in size, shape, general design and wording between the plaintiff’s display card and the defendant’s card. It should be noted, however, that the colors used are distinctly different. The background of the plaintiff’s card is black with red and white being used as additional features of the design. The defendant’s card is of a predominantly red background with red lettering being used in white spaces and white lettering being used over red spaces. At the top of the plaintiff’s card its trade name <£ Waldor ” appears in large letters, while on the defendant’s card its trade name <£ Foldaway ” likewise appears in large letters. The name of each ■producer appears at the bottom of each card.
It should be observed that the wording on the two display cards has a great deal of similarity. Upon analysis, however, it is difficult to determine how the defendant could possibly describe its product except in the language which is used on the display card. The product of each party is mostly bought and used by housewives and the language on the display cards must be simple, direct and easily and quickly understood. The product of each
It is true that the shape of both cards is the same, but it would be impossible to have the shape different because of the size and shape of the product itself, which is attached to the cards of both parties.
Despite certain similarity between the two cards in the respects noted above, this court does not find that the defendant has acted in unfair competition in the manner in which it has produced and distributed its display cards.
The same general observations may be made with reference to the motion picture produced by each of the parties in this action. Of necessity the defendant had to describe its product in its motion picture in the same general manner adopted by the plaintiff for the same reasons as it used phraseology on its display cards similar to that of the plaintiff. The products are so identical that it is impossible for the court to see how simple descriptions and uses could be presented in language or style distinctly different. The court does not agree with the contention of the plaintiff that the defendant acted unfairly in the production and distribution of its motion picture promoting the sale of its product.
During the trial, learned counsel for the plaintiff stated that he also contended on behalf of his client that the defendant was guilty of unfair competition in the manner in which it promoted, demonstrated and sold its product in department stores. It is the court’s opinion, as stated at the time of the trial, that the defendant has every legal right to sell in any department store that will permit the sale of its products, and in the manner which it elects to use. In doing what it has done in this respect defendant corporation has not indulged in any unfair competition. It has a right to demonstrate its product, its function and its uses manually or by means of motion pictures, the same as the plaintiff does.
Competition is often harsh and it is difficult at times for a well-meaning business man to see the fairness of the competitor who invades his territories, produces the same product and adopts the same means of distribution, advertising and sales promotion. However, the competitive system is part of American business life, and where it is practiced with no unfairness, or deception or confusion of the public, it must be accepted philosophically, even though at times its results are disconcerting.
Judgment is granted in favor of the defendant, dismissing the complaint, without costs. Submit judgment on notice. Pleadings and exhibits may be had from the clerk.