POSTUM CEREAL CO., Limited, v. AMERICAN HEALTH FOOD CO., 119 F. 848

JENKINS, Circuit Judge. We have so often spoken to the subject of unfair trade, and the law upon that subject is so well established by the repeated decisions of the ultimate tribunal and of the various circuit courts of appeals, that reference to the decisions would be superfluous. The principle is settled that: “One may not legally use means, whether marks or other indicia, or even his own name, with the purpose and to the end of selling his goods as the goods of another.

If such means tend to attract to himself the trade that would have flowed to the person previously accustomed to use .them, their use will be restrained by the law.” Pillsbury v. Flour Mills Co., 12 C. C. A. 432, 64 Fed. 841. In other words, no one may lawfully so dress his goods that he can palm them off as the goods of another manufacturer. We have no disposition to recede in the slightest degree from the law as declared by this court.

It only remains to consider whether the appellee has so dressed his product, and whether there is such similarity in the carton used by the parties, that the purchasing public would be apt to mistake the goods of one for those of the other.

We pass the question of the alleged piracy of trade-mark with the statement that we are unable to say that the compound word “Grain-Hearts” can possibly be deemed an infringement of the technical trade-mark “Grape-Nuts.” They are not idem1 sonans; and, as suggested in the opinion of the court below, are “dissimilar in sound, appearance, and suggestion.” There is in this record no evidence produced by the complainant below of any actual mistake, or purchase by the public of the goods of the defendant as the goods of the complainant.

There is no evidence that the dress of the one would be mistaken for the dress of the other. The defendant’s evidence is that of sellers at retail, and to the effect that the one is not likely to be mistaken for the other.

The complainant lays some stress upon the testimony of one of these witnesses that he had occasionally substituted one for the other by mistake; but he explains that the reason was because the goods were placed on a shelf side by side, and in the haste of business he took one for the other without looking, and he concluded with the significant remark that in all such cases “they were returned to us as the wrong article, and not the

article called for.” We do not mean to say that proof of the existence of actual deception of purchasers is essential. In the case of a manifest liability to deception, there need be no such proof; but, unless the dissimilarity is so marked that the court, upon inspection of the label, is fully persuaded that the public cannot be imposed upon by the dress of the article, there should be proof of actual mistake by purchasers. In respect bo proof of actual mistake in the case at bar, the evidence is wholly with the defendant below.

But aside from that, we are constrained to say that, upon the face of these labels, we perceive no such similarity as would impose upon a purchaser exercising the ordinary inattention of purchasers. We should be quite content to rest our decision upon the argument of the opinion of the court below, contained in the statement of the case, but we add a few sugges-' tions. It was strenuously insisted that the officers of the defendant had fraudulently sought to imitate the goods of the complainant: First. By imitating an

article said to be the only one of its class, namely, a product produced by the mixture of wheat and barley. In this we think the complainant is mistaken. If it be assumed that the complainant was the first to produce such a compound, it nevertheless does not remove the

article from the class of cereals or breakfast foods with which the country is overrun. Such foods, composed wholly of wheat, of wheat and rye, or of wheat and oats, are quite common, and it was the free right of every one to put upon the market a mixture of wheat and barley. The complainant must rely upon the dress given to the package which contained the product of the defendant. Second.

It is claimed that the name is of similar general character, and in many features identical; that the package used by the defendant is the same in size and shape, and identical in its three dimensions; that the background is of the same color, with the same distinctive features of dress, color, and arrangement, and therefore the competition is unfair. We need not enter into discussion of the conflicting evidence with respect to the intention and motive of the officers of the appellee, because that is of no moment, if the dress itself is not calculated to deceive purchasers. Centaur Co. v. Marshall, 38 C. C.

A. 413, 97 Fed. 785. The question recurs whether we can say that these labels are apt to be mistaken, the one for the other. There may be, indeed, some minor points of resemblance; but we should look at the matter as a whole,—both at the resemblances and the differences,—to ascertain whether, in view> of the differences, the resemblances are so marked that the ordinary purchaser would be likely to be deceived, and should look at the subject in the manner suggested by Mr. Justice Brewer in Lorillard Co. v. Peper Co., 30 C. C.

A. 496, 86 Fed. 956, that: “In determining the question of fraudulent imitation of packages and labels, merely noting tlie points of difference or similarity is not sufficient. Tbe packages and labels must be considered as a whole.” The question resolves itself to this: Whether these two labels are so- alike that one of ordinary intelligence, desiring to purchase the, one product, would be misled into purchasing the other. The ordinarily inattentive purchaser is attracted by sound and color, and possibly to some extent by the size of the package.

It appears here that the question of size in the manufacture of the carton for cereals is determined by the proprietors of the paper mills manufacturing them, by the size of a pound of the product, and that all cereal food is sold in like packages. It is proven, also, that a large proportion of packages containing cereal food, before the pjacing of “Grape=Nuts” upon the market, was of a yellow background.

The background of the two packages in question is somewhat similar in color, although that of “Grain=Hearts” is of a lighter shade than that of “Grapes Nuts.” But there are certain distinctive marks which are peculiarly suggestive to the eye, which, in our judgment, so 'stamp these labels and indicate such marked dissimilarity that we think the purchaser who, relying upon his knowledge of the character of the brand he wished, should mistake the one for the other, would be stupid indeed.

The band in the complainant’s label upon which- is imprinted the compound word “Grape=Nuts” in yellow lettering, extends directly across the face of the package, and is said to be of a dark blue color, although it is .hardly distinguishable from black. The band ■upon the defendant’s package runs obliquely across the face, and is of a bright blue color, with the compound word “Grain=T-Iearts” upon it in white letters, and this band runs across a large red heart, prominently displayed.

This device appears upon every side of the defendant’s package, while the band of the complainant’s package is only upon the face and back. The distinguishing feature of the defendant’s label is the red heart. It is so marked and so pronounced that one could not fail to see it, and it would challenge the attention of any person,—even a stupid person,—who, seeking to purchase the product of the complainant, and knowing its label, should be presented with the product of the defendant. The point of resemblance insisted upon in the use of the double hyphen in the compound word appears to us of slight moment.

It is unusual, indeed, to use the two parallel lines; but we doubt if any but the most observant purchaser would notice it. An inattentive purchaser, using the slightest care, would observe the distinguishing feature of the red heart a hundred times where the careful and attentive purchaser would notice the double hyphen once, and the latter, observing it, would not be deceived, for that same care would disclose the prominently displayed red heart peculiar to the one and absent in the other. We need not pursue the subject.

We are fully satisfied that the dissimilarities are such, and are so pronounced, that the one label is not likely to be mistaken for the other. The decree will be affirmed.