I. Rokeach & Sons, Inc. v. Kubetz

STURTEVANT, J. In an action brought to obtain an injunction the trial court made findings in favor of the defendant and from the judgment entered thereon the plaintiff has appealed.

The plaintiff framed its complaint in two counts. In the first count it alleged a cause of action for wrongful infringement of certain trademarks. In its second cause of action it alleged facts showing unfair competition. In view of the conclusions we have reached regarding the second count we do not deem it necessary to discuss the contentions made under the first count.

Commencing as early as 1884 the plaintiff, or its predecessors in interest, engaged in manufacturing and selling certain articles to the Jewish trade. It commenced doing-business at Kovno, Lithuania, and later transferred its business to New York, where it continued to manufacture and sell. Prom time to time it commenced the manufacture and sale of different articles. At the time this action was commenced, September 19, 1932, the plaintiff was continuing its manufacture in the state of New York and selling in interstate commerce and particularly in the city of Los Angeles. Among other things it was so engaged in the manufacture of a cooking fat and also of a line of soaps. In about the year 1925 the defendant accepted employment by the plaintiff and acted as a general mechanic in its factory down to the year 1931. At about that time the defendant stopped working for the plaintiff, moved to Los Angeles, and there he commenced to manufacture and sell a cooking fat and a line of soaps. The issues presented in this ease involve his method of vending those articles.

[539]The record discloses that both parties prepared and packed in glass jars their cooking fats. The jars are identical in size. On each jar there is a label. It was the contention of the plaintiff that the defendant adopted and used a label that was so closely similar to the label used by the plaintiff as to work a fraud on the latter. The two labels are almost exactly the same size. The plaintiff’s label has circular sides which are truncated. The defendant’s label is of the same identical shape except that it has four ears as though a square were superimposed on a circle in such a position that the four corners would slightly project. From the top of the label to a point slightly below the middle of it appears a design which may be said to be the body of the label. In the center appears a six-pointed star. In the middle of the star appear Hebraic characters spelling the word “Kosher” which means “to prepare in conformity with Jewish laws as meat”. Except as we have indicated, all lines and all dimensions are exactly the same. On plaintiff’s label its name written in Yiddish characters appears at the very top. The characters are in white located in a blue back-, ground. Immediately below the star are Yiddish characters spelling the word “Nyafat”. Those characters are white in a blue background. On the top of defendant’s label appears the defendant’s name written in Hebraic characters. The letters are white resting in a red background. Immediately below the star appears in Yiddish ‘ ‘ Nuf at ”. “ Nuf at ’ ’ means the same as “Nyafat”. The letters are white in a red background. The star on the defendant’s label has a blue background, whereas the star on the plaintiff’s label has a red background. Printed matter in the Yiddish language appears at the right and also at the left of the star on each label. On the plaintiff’s label that printing is in blue; on the defendant’s label it is in red. The expressions translated are identical. Below the design so described, in Yiddish appears, “It can be used for milk and not for meat”. Still lower down on the plaintiff’s label appears its name and address which is printed in blue. In the same position on the defendant’s label appears his name and address printed in red. To one who can neither read nor write Yiddish or Hebrew, all words and letters except the name of the manufacturer appear to be nothing but lines and dots. Each label is bordered by a broad line of gold. Each label is divided