Excelsior Cereal Milling Co. v. Taylor Milling Co.

RICHARDS, J.

This is an appeal from a judgment in favor of the defendant after an order sustaining its demurrer to the plaintiff’s complaint, the latter having declined to amend.

The facts of the case as set forth in said complaint are briefly these: In the year 1907, and long prior thereto, the

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Del Monte Milling Company was engaged in the manufacture and sale of food products throughout California and adjacent states, in the course of which it had discovered a process for the blending of different kinds of flour so as to produce a compound to be used in the making of pancakes, waffles, etc., and which it had introduced to the trade and largely sold under the name of “California Flapjack Flour.” In 1907 the Del Monte Milling Company sold to the plaintiff the exclusive right to use this process in the manufacture of said compound for sale in certain of the southern counties of California and in the states of Nevada and Arizona. The plaintiff thereupon began the manufacture and sale of the product under the name of “California Flapjack Flour,” and have since continued so to do, and have expended large sums in advertising said product under said name, and have built up an extensive trade therein. It is also alleged that because of the long-continued use of said name the word “Flapjack” therein has come to be understood by consumers and by the public and the trade generally to mean and apply to the particular brand of self-raising flour which the plaintiff was making and selling under said name, and that in fact up to the year 1914 no other like article of food had been put upon the market or sold within said territory under the name of “Flapjack” or “Flapjack Flour.” The complaint then proceeds to allege that in the year 1914 the defendant began the manufacture and sale of self-raising flour, to which at first it gave the name of “Pancake Flour,” but a year later this name was changed, and the defendant began to put forth its said product under the names of “Flapjack Flour,” “Los Angeles Best Self-rising Flapjack Flour” and “Taylor’s Improved Flapjack Flour,” and to sell the same within said territory under said names, and that many persons have bought the defendant’s said products under the belief that they were obtaining the plaintiff’s product, and have thereby been deceived to the plaintiff’s injury and loss. The complaint prays for an injunction against the defendant restraining it from the use of the name “Flapjack” in connection with the product which the latter puts forth.