The opinion of the court was delivered by: BYERS
Motion for preliminary injunction in a trade-mark infringement and unfair competition case.
The pleadings and motion papers have been examined and yield the following:
The plaintiff is a New Jersey corporation which has been engaged in the manufacure and sale of baking powder for nearly thirty years. Its principal product is "Davis Baking Powder" which has been on the market under a red label since 1886. The lettering of the quoted words is in white and the margins of the label are yellow. The early version of the label was similar in general appearance to that now employed.
The business was founded by Robert B. Davis in 1878, and he caused it to be incorporated in 1905, and became the president.
The average distribution of this product during the past five years is upwards of 16,000,000 cans per year, during which period advertising expenditures have come to nearly $1,000,000.00.
The article finds its way into consumption through some 9,000 retail grocery stores as to the Metropolitan district and Long Island.
That the plaintiff's product is well established and identified in the public mind under the appellation "Davis Baking Powder" is too clear to admit of serious question.
The defendant is an individual doing business under the style "Julius J. Davis Baking Powder Co., Brooklyn, N.Y.," and relies upon the abstraction that he has the right to make and sell baking powder under his own name, and if he inflicts damage upon the plaintiff's business, that is a consequence for which the plaintiff can have no legal redress.
The defendant is fortified by a trade-mark registration in the Patent Office, but a copy thereof has not been supplied to the court.
How far the case may involve infringement of the plaintiff's several registrations in the same office of "Davis Baking Powder," "Davis'" and "Davis" is not presented on this motion.
The use by the defendant of his own surname in this particular line of activity should be protected by the court, if it appears to have been employed in good faith, and in such a way as to fairly indicate an honest purpose not to acquire the fruits of another's enterprise, i.e., not to engage in unfair competition. Such a principle is to be discerned from Royal Baking Powder Co. v. Royal (C.C.A.) 122 F. 337; De Nobili Cigar Co. v. Nobile Cigar Co. (C.C.A.) 56 F.2d 324; Vick Medicine Co. v. Vick Chemical Co. (C.C.A.) 11 F.2d 33, and sundry of the cases discussed in those opinions.
This defendant is forty-three years of age, and is a bookkeeper and accountant, and also sells various forms of insurance, at 176 Stagg street, Brooklyn, which premises contain a glass show-window proclaiming in large letters the various forms of insurance to be obtained within; there also appears on the window, in large letters, the legend "Public Accountant". A photograph of this store front shows that the entrance door bears what appears to be a cardboard sign bearing, in much smaller letters than anything on the window, the words "Davis Baking Powder Co." It is said that the sign was augmented by the insertion in pencil of the words "Julius J." after the photograph was taken.
The defendant embarked upon this enterprise in May or June of 1933, when he was a person forty-two years of age, without previous knowledge of or ...