Appeal, No. 118, March T., 1951, from decree of Court of Common Pleas of Allegheny County, Oct. T., 1949, No. 56, in case of Kool Vent Metal Awning Corporation of America, Kool VentVent Metal Awning Company of Pittsburgh and National Ventilated Awning Company v. Bernard A. Price, trading as Gutbro Construction Company. Decree affirmed; reargument refused November 27, 1951.
Coleman Harrison, for appellants.
Julian Miller, with him Brown, Critchlow, Flick & Peckham, for appellee.
Before Drew, C.j., Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE BELL
Plaintiff, manufacturer of KoolVent Aluminum Awnings, filed a bill in equity to enjoin defendant from using the name "Cool-Ray" in the sale of aluminum awnings and from persisting in unfair trade practices and for an accounting and damages. The chancellor, after hearing, dismissed the bill. The case turns on two narrow questions: Had the plaintiff's trade name or trade-mark acquired a special or secondary meaning; and if so, was defendant's name or practices so similar to plaintiff's as reasonably likely to confuse or deceive the public?
The chancellor found, upon adequate evidence, the following facts: KoolVent Metal Awning Corporation is a Pennsylvania corporation which was chartered October 26, 1944, and has patented the trade-mark "KoolVent" which it registered with the Secretary of the Commonwealth of Pennsylvania on November 12, 1947. It has advertised its products extensively nationally, as well as locally in Allegheny County. Defendant was engaged in the business of selling and installing building materials and equipment, bathroom fixtures, and, since March 1949, has sold aluminum awnings. The name "Cool-Ray" was adopted by the manufacturer and both it and the defendant knew of KoolVent awnings prior to the adoption of the name "Cool-Ray". Defendant
advertises Cool-Ray awnings locally in newspapers, periodicals and brochures. Other metal awnings of similar design and construction are advertised for sale in Allegheny County under various names, such as "Breeze", "Breezeway", etc. The prefix "cool" or "Kool" is widely used. It appears from Thomas' Register of American Manufacturers, that the word " Koolhome " was registered as a trade name in connection with awnings in 1940, although never sold in Allegheny County; the word "Coolvent" has been used by manufacturers of attic fans; "Cool Vent" by manufacturers of piston rings; and "Cool-A-Vent" was registered as a trademark for window ventilators in 1939. There are more than fifty other products patented with the name "Cool" or "Kool" as a prefix or part of a name, which are in use in other parts of the country.
The plaintiff laid particular stress on the vent as a unique part or characteristic of their product; the Cool-Ray awnings have no vent and do not have a similar appearance. The names do not look or sound alike and create no confusion. The first letter is of course different; the form of the letter is different, one being block and the other script; the word "KoolVent" has a mark over the top of each word; the word "Cool-Ray" is hyphenated; and they neither appear nor are pronounced nor sound alike. "The word 'Cool' is appropriate for and commonly used in the sale of awnings, regardless of type or substance." The word "cool" is a generic word of common and widespread usage; "both [names or trade-marks] suggest a quality generally applied to awnings, i.e., coolness. However, this feature is distinguishable by the last part of each name; vent indicating that the coolness is by ventilation and ray indicating that the awning itself cools the sun's rays without indicating in what particular way this is accomplished." There is a high degree of care exercised by purchasers of each product, since the articles are
expensive and are bought only after negotiation, measurements, and ...