Castroville Co-Operative Creamery Co. v. Col

KERRIGAN, J.

This is an action for the infringement o E a trademark. The appeal is from a judgment in favor of plaintiff, and from an order denying defendant’s motion for a new trial.

Among other things the court found that for more than six years respondent had been engaged in the manufacture and sale of a superior quality of butter at Castroville, California, sold in wrappers bearing a certain label. That respondent had built up a good trade for the butter sold in wrappers bearing this label, and that on February 1, 1904, it caused said label to be registered as a trademark, pursuant to section 3197 of the Political Code. That at all the times mentioned in the complaint the appellant was engaged in selling in the city of San Jose butter of a quality inferior to that of respondent, and that appellant, with the fraudulent intent to mislead the public into purchasing his butter as the butter of respondent, grossly imitated the latter’s trademark.

The court further found: “That an officer of plaintiff, to wit, the ‘Manager’ thereof, prior to the said registration of its trademark with the Secretary of State of California, permitted the use of its butter wrappers on butter other than its own by its customer in San Jose, California, during a time of year when butter was scarce, but that said permission and use were unauthorized by the board of directors of said

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corporation, and said permission was revoked, and said use forbidden by said manager, prior to the filing of plaintiff’s said trademark. ’ ’

The last finding is based on testimony substantially as follows : L. Griffin, the manager of the respondent, called on its behalf, said: “About three-quarters of the output of respondent’s creamery is shipped to Mr. Renzel at San Jose, who sells it there. He sells the butter, and accounts to us for a certain price that we make to him. During the past seven years there have been consignments of wrappers to Renzel so that he could wrap butter not respondent’s in respondent’s wrappers, and sell it as Castroville butter. This was done each year to the extent of ten or fifteen boxes, and during certain seasons when butter was scarce. Castroville butter is sold for five or ten cents a square higher than other butter. We knew that the purchaser was getting something that he did not bargain for, and permitted that to go on under the designation of Castroville Creamery. Our reputation was partly acquired under these conditions. The understanding was that Renzel should wrap only first-class butter. We suffered this to be done up to the time of the trademark. This we stopped because we heard of appellant’s wrapping it. I cannot say that the board of directors knew that we were shipping wrappers to Renzel. I guess they did not. The company never authorized me to do it. At the time we got the trademark I notified Renzel not to use any more of the wrappers.”