American Distilling Co. v. Bellows & Co.

SCHOTTKY, J. pro tem.

This is an appeal from a judgment in favor of defendent and cross-complainant and against plaintiff and cross-defendant denying appellant’s complaint for declaratory relief and granting respondent an injunction against appellant.

Plaintiff and appellant, The American Distilling Company, and defendant and cross-complainant Bellows and Company, Inc., were both Maryland corporations doing business in California. The American Distilling Company filed a complaint for declaratory relief against Bellows and Compahy, Inc., seeking an adjudication to the effect that a trade-mark chosen by said company for a new blend of whiskey did not constitute an infringement of respondent’s trade-mark or unfair competition against said respondent.

The complaint attached as exhibits photostats of labels used by appellant on its new brand of whiskey and that used by respondent on one of its brands. Bottles of the products bearing these labels were also introduced in evidence by plaintiff, while respondent introduced as exhibits bottles of seven different additional brands produced by it, all of which bore the trade-mark Bellows. ’ ’

The complaint alleged that defendant claimed and asserted ownership of a trade-mark consisting of the word “Bellows,” and that after plaintiff began distribution of its new brand “Fellows,” defendant claimed and asserted that plaintiff’s brand and label was an infringement of defendant’s brand and label and of its alleged trade-mark and threatened plaintiff with action by reason of the alleged infringement of trademark and unfair competition.

Defendant and respondent answered and filed a cross-complaint setting forth that the trade-mark “Bellows” is registered in the United States Patent Office as Registration No. 365,723, issued March 14, 1939, for use on whiskey, and that defendant and cross-complainant is the owner of said trademark and said registration; that the sale, distribution and advertising of whiskey and other alcoholic beverages bearing the trade-mark “Bellows” and the corporate name of Bellows and Company, Inc. have been very extensive throughout the United States and in California amounting to the sum of

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$108,000,000 from January 1, 1942, to September 30, 1948, and that during that period more than $1,980,000 was spent on advertising liquor bearing said trade-mark; that due to the long and extensive use of said trade-mark and corporate name, whiskey and other alcoholic beverages have come to be widely and favorably lmown as defendant and cross-complainant’s products and are identified by the public by said trade-mark and corporate name to defendant and cross-complainant’s great benefit and profit. It alleged also that the word “Bellows” had acquired a secondary meaning in that to the trade and purchasing public whiskey and alcoholic beverages bearing the trade-mark “Bellows” had come to mean and still mean defendant and cross-complainant’s products only. It further alleged that each and both of the designations “Fellows” and “A. J. Fellows” are colorable imitations of defendant and cross-complainant’s trade-mark Bellows and the corporate name “Bellows & Company, Inc.” with intent to deceive the trade and the public into purchasing plaintiff’s whiskey bearing such designations in the belief that said whiskey is the product of defendant and cross-complainant; that the use by plaintiff of such designations infringes defendant and cross-complainant’s trade-mark “Bellows” and corporate name “Bellows & Company, Inc.” and constitutes unfair competition with defendant and cross-complainant. It was alleged that defendant and cross-complainant had notified plaintiff and cross-defendant that its use of the aforesaid designations infringed defendant’s trade-mark and constituted unfair competition and demanded discontinuance of its use, whereupon plaintiff and cross-defendant notified cross-complainant that it had discontinued use of said designations, but threatened to resume their use if it is not judicially determined that it is violating defendant and cross-complainant’s rights in using said designation. Cross-complainant asked that plaintiff’s use of the designations “Fellows” and “A. J. Fellows” be adjudged infringement of cross-complainant’s trade-mark “Bellows” and the name “Bellows & Company, Inc.” and unfair competition; that plaintiff and cross-defendant be perpetually enjoined from using the aforesaid designations; that plaintiff account to defendant for all profits from the sale of whiskey bearing such designations.