296 F2d 740 Miles Laboratories Inc v. J Frolich

296 F.2d 740

132 U.S.P.Q. 122

Henry J. FROLICH, D/B/A Encino Chemicals, Appellee.

No. 17491.

United States Court of Appeals Ninth Circuit.

Dec. 26, 1961.

Appeal from the United States District Court for the Southern District of California, Central Division; M. D. Crocker, Judge.

William T. Woodson, Chicago, Ill., Reginald E. Caughey, Los Angeles, Cal., for appellant.

Woodson, Pattishall & Garner, Chicago, Ill., and Lyon & Lyon, Los Angeles, Cal., of counsel, for appellee.

Henry J. Frolich, in pro. per.

Before BARNES, MERRILL and BROWNING, Circuit Judges.


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The appellant contends that appellee's use of the trademark MILK-O-SELTZER in the sale of a medicinal preparation designed for the relief of headache and upset stomach infringes the appellant's trademark ALKA-SELTZER, used for the same purposes, and also that such use constitutes unfair competition. The United States District Court for the Southern District of California, Central Division, held to the contrary. We affirm the judgment of the District Court on the basis of the well-reasoned opinion of Judge M. D. Crocker, D.C., 195 F.Supp. 256.


MERRILL, Circuit Judge (dissenting).


I dissent and would reverse.


These parties are and will continue to be in competition. Nothing we do here will alter that fact. The question is not as to whether they may compete with each other but as to the names under which they may compete with each other.


One need only repeat these two names one after the other, like an oldfashioned college cheer, to perceive the extraordinary similarity in sound. I cannot rationally escape the conviction that such similarity was deliberately intended by the appellee. To me it is a clear case of imitation. I cannot rationally escape the conviction that some confusion of the consumer must result.


I do not feel it proper or necessary in the name of fair competition that a newcomer to this highly competitive arena should, simply because he is a newcomer and competitively weak, be permitted to hitch a ride from his established competitors. This is precisely what we do here when we permit him to appropriate as his appellation a sound which has by his competitor been made to ring so familiarly upon the public ear.