The opinion of the court was delivered by: GALSTON
This action involves alleged trade-mark infringement and unfair competition.
There is also a counterclaim of the defendants, which seeks to have the trade-mark registration of the plaintiff, covering its trade-mark Clorets, cancelled.
The plaintiff is a manufacturer of chewing gum, and has been in that business for over fifty years. Some time in February, 1951, it marketed a chlorophyll chewing gum under the name Clorets. The volume of its sales was very considerable, and had been aided by extensive advertising. The distribution of the product was nationwide. The advertising had been carried on in such magazines as Life, The Saturday Evening Post, Look, and many others, and likewise in newspapers. Plaintiff alleges that its long continuous and extensive use and advertising of its trade-mark Clorets has identified that trade-mark with the plaintiff and its product. It is likewise asserted by the plaintiff that the package of its chlorophyll gum is recognized and used by purchasers to identify plaintiff's chewing gum and to distinguish it from other brands. It contends also that there has been created in the minds of dealers, as well as in the minds of buyers and consumers of chewing gum, a very close association between the name Clorets and its product.
The defendants manufacture and sell chlorophyll chewing gum under the name Clor-aid, in packages having some resemblance to the Clorets package.
The retail price of the plaintiff's package, Clorets, since that package was put on the market is 15 cents, whereas the retail price of defendants' package is but 10 cents.
It is contended that the acts of the defendants are calculated to cause consumers to buy defendants' product in the belief that it is the product of the plaintiff, and that many consumers have bought defendants' product in such belief. Thus the defendants are charged with unfair competition. It is claimed too that the name Clor-aid is commonly referred to by the trade as Clor-aids, and thus infringes plaintiff's trade-mark rights. Specimens of the plaintiff's package, and the challenged package of the defendants, are annexed to the complaint.
First as to the common law trade-mark, Clorets: I do not think the plaintiff has sustained its claim of infringement of the common law trade-mark. Apparently this is a commercial period in which the term 'chlorophyll' is very much in the public mind, and its supposed beneficial medical value has led to the adoption by many manufacturers of terms suggesting the presence of chlorophyll. The proof leaves no doubt that chlorophyll chewing gum has been and is sold in the United States by those other than the parties in suit under varying names, as for example