Appeals, Nos. 140 and 141, Jan. T., 1959, from judgment of Court of Common Pleas of Snyder County, June T., 1958, Nos. 1 and 2, in equity, in case of Dutch Pantry, Inc. v. Grant L. Shaffer et al., and Same v. Marjorie Fetter trading and doing business as Miracle Dutch Treat et al. Judgment in each case reversed. Equity. Adjudication filed sustaining defendants' preliminary objections and dismissing complaint, and judgments entered, opinion by SHOWERS, P.J. Plaintiff appealed.
Leonard R. Apfelbaum, with him Laird S. Gemberling, for appellant.
Michael Kivko, with him Horace W. Vought, for appellee.
Sidney Apfelbaum, with him Joseph F. Ingham, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen and Bok, JJ.
OPINION BY MR. JUSTICE BOK
Preliminary objections have been sustained in both of these cases, and since the legal principles are the same and only the pleaded facts differ somewhat, we will consider them together.
It should be made clear at the outset that the scope of our review is narrowed to the question of whether or not summary judgment was proper. The law is plain that such disposition should be made, especially when it has the effect of putting the plaintiff out of court, only in cases that are clear and free from doubt: London v. Kingsley, 368 Pa. 109; 81 A.2d 870 (1951); Adams v. Speckman, 385 Pa. 308; 122 A.2d 685 (1956).
It is interesting to note that none of the cases cited by the court below to support its action or by counsel for appellee in No. 141 to support its argument was disposed of by summary judgment. All were decided after hearing. Counsel for appellee in No. 140 has cited some older Federal cases to the effect that a motion to dismiss should be granted when it is clear that under no state of the evidence could plaintiff make out
a case of infringement and hence it would be idle to go farther. The monitor that he cites for this rule is Van Camp Sea Food Co. v. Westgate Sea Products Co., 28 F.2d 957, C.C.A. 9th (1928).
Applying this measure to the pleaded facts, it is obvious that the court below was in error.
In both cases the court has taken from the Restatement, Torts, § 729, the following apparatus by which to determine whether the defendants' designations are confusingly similar to the plaintiff's:
"(a) The degree of similarity between the designation and the trademark or tradename in (i) appearance; (ii) pronunciation of the words used; (iii) verbal translation of the pictures or designs involved; (iv) suggestion; (b) The intent of the actor in adopting the designation; (c) The relation in use and manner of marketing between the goods or services marketed by the actor and those marketed by the other; (d) The degree of care ...