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CLOROX CHEM. CO. v. CHLORIT MFG. CORP.

November 25, 1938

CLOROX CHEMICAL CO.
v.
CHLORIT MFG. CORPORATION et al.



The opinion of the court was delivered by: MOSCOWITZ

MOSCOWITZ, District Judge.

This is an application made by Clorox Chemical Company, plaintiff, for a preliminary injunction against Chlorit Manufacturing Corporation, Meyer Feldman, and Harry L. Senderoff, the defendants herein. The defendants Feldman and Senderoff are officers and agents of the Chlorit Manufacturing Corporation.

The following relief is demanded:

 "That the defendants, their officers, servants, agents, employees and attorneys, and those acting in privity or in concert with them, or any of them, be pendente lite and permanently enjoined and restrained:

 "(a) From using the name 'Clorox', 'Chlorit', or the trademark 'Clorox', or any name or symbol resembling Clorox or Chlorit, as part of any corporate or tradename of any defendant, or in connection with any of their products, or with any business of manufacturing or selling any of their products;

 "(b) From using a label with a color combination of white and light or dark blue and pink or vermilion, and in such a way as to cause confusion with the product of the plaintiff herein;

 "(c) From using the picture of a clothesline on a label;

 "(d) From displaying in any manner, shape or form in connection with the manufacture or sale of any of their products the mark or symbol 'Chlorit' or the trademark 'Clorox', or from using in connection with their business the trademark 'Clorox', or the symbol 'Chlorit', and from using on any letterhead, billhead, or circular, or any media of advertisement, any name thereon resembling the name and trademarks of plaintiff herein;

 "(e) From doing any act or making any representation likely to induce the public to believe that plaintiff is carrying on the business carried on by defendants, or that defendants have authority from plaintiff herein to use the trademark 'Clorox' or the name 'Chlorit', or any trademark of plaintiff in connection with the defendants' business;

 "(f) From doing any act likely to induce the public to believe that defendants or any of them are entitled to the use of plaintiff's name or trademarks, or any name or symbol resembling plaintiff's name or trademarks as being the successor of the plaintiff, and from, in any way intermeddling or interfering with plaintiff's trademark and name."

 Both the plaintiff and the defendants are engaged in the business of manufacturing and selling a bleaching, cleansing, antiseptic and germicidal compound in liquid form. Plaintiff's product is known as "Clorox" and defendants' as "Chlorit".

 Electro-Alkaline Company in about February 1915 adopted and began the use of the name of "Clorox" and registered the name of "Clorox" in the United States Patent Office. Clorox Chemical Corporation became the successor in business to Electro-Alkaline Company in 1922, and in 1928 plaintiff succeeded the Clorox Chemical Corporation. It appears therefore that since 1915 the plaintiff and its predecessors have been manufacturing "Clorox" under that name.

 About August 1936 the defendant Chlorit Manufacturing Corporation was organized and began selling its product under the name "Chlorit".

 The plaintiff is evidently a firm of great financial responsibility. During the last seven years it has spent $6,000,000 in advertising "Clorox". In the year 1937 it spent $1,000,000 in advertising. The total sales of "Clorox" in New York amounted to $700,000 in 1937 and the total sales for that year amounted to $3,600,000. The plaintiff's capital stock consists of 120,000 shares of no par value common stock, of which 113,756 shares are outstanding of the paid-in-value of over $1,200,000.

 The Chlorit Manufacturing Corporation, according to its financial statement as of October 29, 1938, shows current assets in the sum of $10,094.47 consisting of $1,912.19 in cash, accounts receivable $3,312.36, inventory $4,869.92; current liabilities $6,917.96. It therefore is not in a financial position to pay plaintiff's damages that have accrued and will accrue as a result of the sales of "Chlorit".

 Plaintiff's product "Clorox" and defendants' product "Chlorit" are both sold in long, round, amber-colored bottles and are identical in shape and color. The name "Clorox" is blown into the glass around the neck and shoulders and on the bottom of the bottle. The name "Chlorit" is blown into the glass around the shoulders and on the bottom of the bottle. Affixed to the "Clorox" bottle is a rectangular label, having a light blue background, in the middle of which is a vermilion diamond with a dark blue center. Affixed to the "Chlorit" bottle is a label with a background of light blue and various shades of vermilion and dark blue with the name of "Chlorit" printed thereon in white letters. On the "Clorox" bottle the word "Clorox" is printed in white letters in the center of the diamond. On the label of the "Clorox" bottle is a picture of a ...


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