JOSEPH SCHLITZ BREWING COMPANY
v.
HOUSTON ICE & BREWING COMPANY ET AL.
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Joseph Schlitz Brewing Company sought to enjoin Houston Ice & Brewing Company from using a trade-mark and label design allegedly infringing Schlitz's mark and deceiving consumers. The Supreme Court affirmed the lower courts' decision for the defendant, holding that although both parties used brown bottles and labels, the defendant's label shape, script, and application method were sufficiently different from Schlitz's spiral-wrapped label to avoid creating a likelihood of deception, and that the defendant's imitation did not appreciably contribute to any confusion arising from the common elements of beer and brown coloring.
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Mr. Justice Holmes delivered the opinion of the court.
This is a bill in equity brought to restrain the use of a .trade-mark alleged to infringe the plaintiff’s or at least to be used in a way that is calculated to deceive, and unfairly to interfere with the plaintiff’s good will. Both Courts have found for the defendant, 241 Fed. Rep. 817, 154 C. C. A. 519, so that the only question that we shall consider is whether upon inspection it can be said as matter of law -that the admitted acts of the defendant are a wrong of which the plaintiff can complain.
Both parties sell beer in brown bottles with brown labels and the plaintiff conceded belów and still with somé unwillingness seems to concede that, although perhaps it first introduced them in this connection, and this place, it cannot claim the brown, bottle, the brown label, or the two combined. These could be used without a warning, such as sometimes is required, .that the beer was not the plaintiff’s. The only question is how the additional element,' the form of the inscription, should be treated. It often is said that the plaintiff must show a deception arising from some feature of its own riot common to the public. United States Tobacco Co. v. McGreenery, 144 Fed. Rep. 531, 532, cited by the-Court below. But so stated the proposition may be misleading/ It is not necessary that the imitation of the plaintiff’s feature taken alone should be sufficient to deceive. It is a fallacy to break the fagot stick by stick. It would be enough if taken with the elements common to the public the inscription accomplished a result that neither would alone. New England Awl & Needle Co. v. Marlborough Awl & Needle Co., 168. Massachusetts, 154, 156.
But it is true that the unlawful imitation must be what achieves the deception, even though it could do so only on the special background lawfully used. The question again narrowed is whether that is the case here. The shape of the defendant’s label is different from the plaintiff’s; the script upon it not only is wholly different from the other in meaning, to one who reads the two, but hardly can be said to resemble it as a picture. The two labels are attached to the bottles in quite unlike modes. The Schlitz is applied in a spiral around the length of the bottle so as to make the ends of the label parallel to the sides of the glass. The defendant’s is pasted around the bottom of the bottle in the usual way. This diversity of itself renders mistake unlikely. If there were deception it seems to us that it would arise from beer and-brown color and that it could, not be said that the' configuration appreciably helped. Coats v. Merrick Thread Co., 149 U. S. 562, 573. Beyond stating the principles to be applied there is little to be said except to compare the impression made by the two, or,- if that form of statement is preferred, the memory of Schlitz with the presence of the defendant’s bottles as marked.
Decree affirmed.
Mr. Justice McKenna and Mr. Justice Pitney dissent.
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Cited By (22 total)
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Beech-Nut Packing Co. v. P. Lorillard Co., 273 U.S. 629 (U.S. 1927)…nt the nice question-upon which the petitioner wished us to pass. Both Courts having' found for the defendant, we see no ground upon which it can be said that they were wrong as matter of law. Joseph Schlitz Brewing Co. v. Houston Ice & Brewing Co., 250 U. S. 28, 29. Decree affirmed..…
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Avrick v. Rockmont Envelope Co., 155 F.2d 568 (10th Cir. 1946)…gency Co., supra, or where it is inconceivable that an ordinary purchaser examining the two labels would be deceived. Schneider Brewing Co. v. Century Distilling Co., supra; McLean v. Fleming, supra; Schlitz Brewing Co. v. Houston Ice & Brewing Co., 250 U.S. 28, 39 S.Ct. 401, 63 L.Ed. 822; Dwinell-Wright Co. v. National Fruit Product Co., supra. In other cases extrinsic evidence may be necessary. 3 Torts A.L.I., Sec. 728, Comment a. It is contended that the trial court merely made a side by side visual co…
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Nat'l van Lines v. Dean, 237 F.2d 688 (9th Cir. 1956)…eeking to protect the word “National” or vertical stripes, considered separately, as service marks. It is the composite of the word plus the stripes which appellant here defends. As Mr. Justice Holmes said, in Schlitz Brewing Co. v. Houston Ice Co., 250 U.S. 28, 39 S.Ct. 401, 63 L.Ed. 822, “It is a fallacy to break the fagot stick by stick.” No other company, save appellee, was shown to be using such a composite mark at the time this suit was brought. That composite mark, in our opinion, is sufficiently di…
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- Coats v. Merrick Thread Co., 149 U.S. 562 (U.S. 1893)