Infringements are generally more subtle and clever than a mere bodily adoption of a trade-mark. For instance, a piratical trade-mark may be devised so nearly like a well-known mark that it will readily deceive an unwary or careless or ignorant purchaser, and yet be so different that a show of defending it may be made.
Or, an entirely different trade-mark may be used, while the size, shape and color of the package may be imitated. The National Biscuit Company uses distinctive packages for its products, and its trade-marks are, in most cases, original, arbitrary, coined words, yet it has so far prosecuted approximately five hundred suits for infringement of its marks and packages.
"Uneeda Biscuit" has been infringed by "Iwanta Biscuit", "Uwanta Biscuit" and "Ulika Biscuit", all of which were enjoined. In the "Iwanta" case, the opinion of the court was, in part, as follows:
"Defendants present the usual voluminous bundle of affidavits by persons in the trade to the effect that in their opinion no one is likely to mistake defendant's biscuit for complainant's. As has been pointed out before, it makes no difference that dealers in the article are not deceived. No one expects that they will be. It is the probable experience of the consumer that the court considers. Here, too, we have the manufacturer of the articles complained of, who explains, as usual, that in adopting a trade-name by which to identify his own product he has been most careful not to trespass upon any rights of complainant, and that, after considerable thought, he selected a name which should make the difference between his goods and complainant's distinct and plain, so that there could be no possibility of mistake. It is a curious fact that so many manufacturers of proprietary articles, when confronted with some well-advertised trade-name or mark of a rival manufacturer, seem to find their inventive faculties so singularly unresponsive to their efforts to differentiate. Thus, in one case, with the word 'Cottolene' before him, defendant's best effort at differentiation resulted in 'Cottoleo'; and 'Mongolia' seemed to another defendant entirely unlike 'Magnolia'. The manufacturer of the articles which defendants in the case at bar are selling seems to have had no better luck, for, with the word 'Uneeda' before him, his device to avoid confusion was the adoption of the word 'Iwanta'. The incessant use of the personal pronouns in daily speech has associated in every one's mind the sounds represented by the letter 'I' and 'U', the two words are of precisely the same length; both end with the letter 'A', and both express the same idea, namely, that the prospective purchaser's personal comfort would be promoted by the acquisition of a biscuit.... Both name and dress are clearly calculated to mislead, and the statements that both were adopted with an eye single to differentiation strain the credulity of the court beyond the breaking point."
In the case of Lever Bros. v Smith (112 Fed. R. 998), the complainant had built up a large and profitable sale for "Welcome" soap. The defendant, Welcome A. Smith, put on the market a soap similar in size and shape to "Welcome" soap, and labeled it with his own name "Welcome A. Smith", making the word "Welcome" on his labels large and prominent, with "A" and "Smith" below it, and in much smaller type. On the ends of the package the word "Welcome" alone appeared. It was held that while Smith had a right to use his own name, he could not use it in such a way that it would suggest an identity between these two products.
The trade-mark of a widely advertised household necessity.
In the case of Swift v Brenner (125 Fed. R. 826) it was held that Swift & Company's "Old Mill Soap" which had a picture of an old mill on the label, was infringed by "Old Stone Mill Soap", the label of which also had a picture of an old mill.
In the interesting case of the Welsbach Light Company v Adam (107 Fed. R. 463) it was shown that the infringing trade-mark had been devised before the complainant's mark, but had not been used until after the complainant's mark had been registered. On Feb. 20, 1900, the complainant (The Welsbach Light Company) registered the coined word "Yusea," as a trade-mark applied to gas mantles. Some months before this, the defendant had conceived the name "U—C—A" with the idea of using it in connection with gas mantles of his own manufacture. Its actual use as a trade-mark was not begun, however, until after the complainant's mark had been registered. On Oct. 23, 1900, the defendant registered "U—C—A" as a trade-mark.
