GLENMORE DISTILLERIES CO.
v.
NATIONAL DISTILLERS PRODUCTS CORPORATION
This suit for trade mark infringement was instituted by Glenmore Distilleries Company, owner of the trade mark Kentucky Tavern, as applied to whisky, to enjoin the use by National Distillers Products Corporation of the mark Town Tavern on whisky or other alcoholic beverages. The District Judge rendered an opinion (D.C., 23 F.Supp. 928) in which he held that the similarity of the marks was not such as to be likely to confuse a purchaser of the goods exercising ordinary caution in his dealings; and since there was no claim of unfair competition by fraudulent simulation on the part of the defendant, the bill of complaint was dismissed.
We are in accord with this conclusion. The appellant, recognizing that it has no right to appropriate the word Kentucky as applied to1 whisky, nevertheless insists that Tavern is the dominating word in the name, Kentucky Tavern, and that any use of it by a manufacturer of distilled liquors constitutes an infringement of the mark. It is by no means certain that the word Tavern, which in one significance indicates a place where intoxicating liquors are kept for sale, is subject to appropriation by a manufacturer of whisky. The evidence shows a number of instances in which the word has been used in combination with other words as a trade mark for whisky both before and after the adoption and use of the plaintiff’s mark. However that may be, it is sufficient here to say that no infringement exists.
It is impossible to lay down a general rule that either word in an established trade mark of two words is of such importance that its use in other combinations on the same kind of goods would constitute infringement.1 Every case must *480of course be decided upon its own facts. “What degree of resemblance is necessary to constitute an infringement is incapable of exact definition, as applicable to all cases. All that courts of justice can do, in that regard, is tó say that no trader can adopt a trade-mark, so resembling that of another trader, as that ordinary purchasers, buying with ordinary caution, are likely to be misled.” McLean v. Fleming, 96 U.S. 245, 251, 24 L.Ed. 828. In our opinion, such a resemblance between the trade marks used by the parties to this case does not exist.
Affirmed.
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Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (20 total)
- McLean v. Fleming, 96 U.S. 245 (U.S. 1877)
- Bon Ami Co. v. McKesson & Robbins, Inc., 93 F.2d 915 (C.C.P.A. 1938)
- John Morrell & Co. v. Doyle, 97 F.2d 232 (7th Cir. 1938)
- Turner & Seymour MFG. Co. v. A. & J. MFG. Co., 20 F.2d 298 (2d Cir. 1927)
- Gold Dust Corp. v. Hoffenberg, 87 F.2d 451 (2d Cir. 1937)
- Coca-Cola Co. v. Carlisle Bottling Works, 43 F.2d 119 (6th Cir. 1930)
- Traub MFG. Co. v. R. Harris & Co., 53 F.2d 416 (C.C.P.A. 1931)
- The Pep Boys v. Fisher Bros. Co., 94 F.2d 204 (C.C.P.A. 1938)
- Caron Corp. v. V. Vivaudou, Inc., 4 F.2d 995 (2d Cir. 1925)
- In re Coca-Cola Bottling Co. of Los Angeles, 49 F.2d 838 (C.C.P.A. 1931)