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KEEBLER WEYL BAKING CO. v. J. S. IVINS' SON

April 10, 1934

KEEBLER WEYL BAKING CO.
v.
J. S. IVINS' SON, Inc.



The opinion of the court was delivered by: KIRKPATRICK

This is a suit in equity based upon alleged trade-mark infringement and unfair competition.

Both the plaintiff and the defendant are manufacturers of crackers, biscuits, cookies, and similar products, and both have their offices and plants in Philadelphia. Since a date prior to 1930, the plaintiff has been selling its products in Eastern Pennsylvania (including Harrisburg), New Jersey, Delaware, Maryland, and Florida and the defendant has competed with it in that territory or at least in a considerable part of it.

 In the latter part of 1930, the plaintiff developed a new type of soda cracker, deeply scored, so that it could be broken into halves of a convenient shape, and of slightly stronger texture than the ordinary kind, so that it could be spread with jam, cheese, and butter without breaking it. It is a good product, attractive, but not particularly unique or strikingly novel. For it the plaintiff adopted the name "Club Cracker."

 The defendant's infringement of the trade-mark may be taken as conceded. It uses the name "Club Cracker," sells a product which is practically identical with the plaintiff's, and sells it in the same territory.

 The plaintiff's trade-mark is not registered but the right arises from adoption and user as follows:

 (a) Beginning December 11, 1930, the plaintiff sold the cracker in bulk in marked containers -- at first in fourteen ounce tin cans or pails painted bright green with the words "Club Crackers" in white in large letters upon the can, and later in eight to ten-pound drums marked with a label upon which the words were printed. On January 30, 1932, the plaintiff began to sell it also in paste-board cartons having a distinctive design in two shades of green and yellow and prominently marked with the words "Club Crackers."

 (b) The plaintiff advertised the cracker, featuring the name and a picture of the pail, from January 27 to February 13, 1931, in Philadelphia and Florida. From January 14, 1932, until the filing of the bill in June, 1933, and thereafter, the plaintiff advertised very extensively, featuring pictures of the new carton and the name, throughout its entire territory by newspaper advertisements, circulars, and billboards, spending in all more than $45,000 as follows: 1931 -- $2,000; 1932 -- $26,000; 1933 -- $17,000.

 The plaintiff's cracker "caught on" rapidly and has had a very satisfactory sales record.

 The defendant's case consists of an attack upon the plaintiff's right.

 Three questions are involved:

 I. Are the words "Club Crackers" susceptible of appropriation as a trade-mark?

 The defendant argues that they are not because they are descriptive and were never used by the plaintiff as a trade-mark, but solely as a grade mark to designate a particular kind or type of cracker.

 I do not see how it can be seriously contended that the word "club" is descriptive. It tells you nothing about any special characteristic of the product. It is, no doubt, remotely suggestive of excellence (upon the theory that better food is served in clubs than elsewhere) and possibly of exclusive clientele, but of nothing more. The crackers are not any more adapted to use or by clubs than they are at home, in hotels, restaurants, or dining cars or at picnics. They are not manufactured by clubs or exclusively for clubs, nor are they, so far as I know, indorsed or specially featured by clubs. There are many words, at least equally suggestive of quality which have been sustained as valid trade-marks. The word "club," as a trade-mark for bottled cocktails, was sustained in Heublein v. Adams (C.C.) 125 F. 782, and, as a trade-mark for soda, by the British court of last resort in Cochrane v. MacNish & Son, App. Cas. 225 (1896). In Old Lexington Club Distillery Co. v. Kentucky Distilleries, etc., Co. (D.C.) 234 F. 464, the words "Old Lexington Club" as applied to whisky were held a valid trade-mark as against the objection that "Lexington" was geographical and "Club" descriptive ...


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