MOXIE CO. v. DAOUST, 206 F. 434

BROWN, District Judge. The Moxie Company makes and sells a beverage well known as “Moxie.” Daoust is a manufacturer of beverages, at Manchester, N. H., and makes a beverage quite similar in color and taste, which he calls “Bo-La.” This is put up in bottles which, in size and shape, closely resemble the Moxie bottle, which is of a distinctive shape for many years associated with the beverage “Moxie.” These bottles were manufactured to order for Daoust.

When used for dispensing the beverage over a counter, the resemblance of the bottles is so close that the Bo-1 .a bottle would appear to the casual inspection of a customer to be a Moxie bottle. The similarity of the beverages, in color and in taste, together with the similarity of the bottles, facilitates the substitution of the Daoust beverage for Moxie without detection by the customer. The Moxie Company lias produced evidence to the effect that many retail dealers, when asked for Moxie,- have served Bo-La from BoLa bottles.

We think it clear from the record that the use of this bottle facilitates fraud by unscruptdoits retail dealers, and that Daoust is deriving a profit fom the fact that his beverage is in many instances fraudulently .substituted for Moxie. No satisfactory explanation is given by Daoust for ordering his bottles to be made in such close resemblance to t'he Moxie bottle, and we' see no legitimate reason why Daoust, in marketing a beverage so similar tó Áloxie in color and taste, should choose also to adopt a container so closely resembling that of the Moxie Company, thus in-' creasing the chance of deception.

There is the usual stress placed upon points of difference in labels, blown into the glass and affixed thereto, in caps, etc.; but differences which do not destroy the general similarity of appearance to the ordinary purchaser are of no consequence and need not be dwelt upon. Unless the differences shown are such as to destroy the substantial similarit)'' of the articles for the purposes of ordinary use, they fall short of a defense.

Both from our own inspection and from the evidence in the record we are satisfied that the resemblance is such as tends to mislead purchasers, and we find nothing in this record which justifies a dealer in putting forth a package which, under ordinary conditions of use, is so apt to deprive the Moxie Company of sales, and to induce sales of Daoust’s beverage. Counsel for Daoust insist that he is not responsible for the fact that tricky retailers represent his manufacture as that of the Moxie Company, provided he has done his. legal duty in distinguishing his product.

If, however, he chooses, without necessity, to imitate in general appearance the complainant’s package, he does not perform his legal duty of distinguishing his product by making differences which leave unimpaired the general resemblance. The question is of similarity in essentials. This similarity could easily have been avoided by ordering a bottle of size or shape different from the Moxie bottle, or by a change' in color of the beverage. See Coca-Cola Co. v. Gay-Ola Co. (C. C. A.) 200 Fed. 720, 724, 725.

It is suggested that the latter is impossible, but little weight can be given to such a suggestion or to Daoust’s evidence as to the impossibility of doing SO'. If the confusion is caused by the general appearance, the burden is upon Daoust to see to it that ultimate fraud does not result.

Though Daoust has a right to use a.bottle like the Moxie bottle, and to make a beverage that resembles in taste or in color the complainant’s beverage, he has no right to use these things in that special combination in which the complainant uses them, if that has become a distinctive coihbination distinguishing the complainant’s article.

The whole argument that by labels in and upon the glass he has done all that he could do to distinguish the bottle rests upon a false assumption; i. e., that he had a,right to adopt the same package, provided that, after adopting it, and while continuing to hold it in use, he did- all in his power to destroy the similarity, though he was unsuccessful in doing so. The complainant cuts under this by saying that the defendant had no right to do that which rendered these distinctions necessary, and which also rendered them futile.

The-decree of the District Court is’ reversed, and the case is remanded to that court, with directions to enter a decree for the complainant for an injunction and for further proceedings consistent with this opinion, and the appellant recovers its costs of appeal.