Pacific Coast Condensed Milk Co. v. Frye & Co.

Citations

• 85 Wash. 133
• 147 P. 865
• 1915 Wash. LEXIS 1262

Syllabus

<p>Trade-Marks and Trade-Names — Unfair Competition — Imitation. Fraud amounting to unfair competition by the confusion of things used in the label of another which through such other’s prior use had come to connote a particular thing, depends upon whether the same would be reasonably calculated to deceive the common or usual purchaser of the given article when exercising ordinary care.</p> <p>Trade-Marks and Trade-Names — Unfair Competition — Imitation —Labels and Colors. Unfair competition in the use of a similar label for a like article of goods, sufficient to warrant injunction, is not shown by the fact that plaintiff for a number of years had on the market a condensed milk known as “Carnation Brand Sterilized Evaporated Milk,” and that the defendant later put out an article known as “Wild Rose Brand Sterilized Milk,” when the specific points of resemblance in the labels are that both are made of the samé colors of red and white in bands of uniform width with their relative positions reversed; that the central group of one consists of a bunch of three carnations and the other of three wild roses, and that there is a resemblance in number, size, arrangement and relative position of the several parts and words and in the colors in which the same are represented, excepting that the title “Carnation” is in script type and that of “Wild Rose” in Roman; since there is no idem, sonans in the names, and similarity in the color scheme alone is not sufficient to constitute an infringement; especially where there was no evidence that dealers or consumers had been deceived by the similarity in color and design.</p> <p>Trade-Marks and Trade-Names — Unfair Competition — Imitation —Deception of Public. Although a label for a competing article of goods may manifest a similarity in color scheme and grouping which might be characterized as ethically questionable, yet where the differences are so prominent as to negative a design to deceive an intending purchaser of ordinary intel