Appeal from the District Court of the United States for the District of Nebraska; John W. Delehant, Judge.
William Ritchie, of Omaha, Neb. (C. Earl Hovey, of Kansas City, Mo., W. Ross King and Edward F. Fogarty, both of Omaha, Neb., Russell W. Bartels, of Wayne, Neb., and Ritchie & Swenson, of Omaha, Neb., on the briefs), for appellant.
George L. De Lacy, of Omaha, Neb. (Matthias Concannon and Lee J. Gary, both of Chicago, Ill., and Edwin L. Harding, of Battle Creek, Mich., on the brief), for Kellogg Sales Co., appellee.
Edgar M. Morsman, 3d, of Omaha, Neb. (Morsman & Maxwell, of Omaha, Neb., and Lester E. Waterbury, of New York City, on the brief), for General Foods Sales Co., Inc., appellee.
Before SANBORN, WOODROUGH, and THOMAS, Circuit Judges.
The appellant since 1925 has sold a breakfast food under the name "Raisin-BRAN." In 1942 each of the appellees commenced to market a similar breakfast food under a name which included the words "Raisin Bran." In each of these actions the appellant, claiming the exclusive right to use the name "Raisin-BRAN," charged trade-mark infringement and unfair competition. The appellees each denied the charges made. The cases were tried separately. The District Court, at the conclusion of the trials, determined that the appellant was not entitled to the injunctive relief which it sought, and entered a decree in each case dismissing the complaint. The court made findings of fact and conclusions of law in each case, but dealt with both cases in one opinion. 52 F.Supp. 432. These appeals were briefed and argued separately. The controlling questions in each case are, however, substantially the same and the cases appropriately can be considered together.
In its opinion the trial court has, with admirable thoroughness and care, stated the facts in detail, discussed each issue presented at the trials, considered the applicable rules of law, and explained its reasons for deciding that the appellant was not entitled to a decree enjoining either appellee from marketing its competing product as "Raisin-Bran." In view of the complete analysis of the facts and the law of these cases by the trial court in its published opinion, it is unnecessary for this Court to do more than state briefly and generally the factual situation out of which the cases arose, and to express its conclusions relative to the questions presented on appeal and the basis for those conclusions.*fn1
The appellant makes and sells food for human consumption. In 1925 it originated and caused to be manufactured a prepared dry breakfast food in which raisins were mixed with whole wheat flakes containing added bran and salt. The appellant named this product "Raisin-BRAN" and sold it in packages bearing that name. There was no similar product on the market at that time or until 1942. The appellant has done all that could be done to appropriate "Raisin-BRAN" as the trade-mark of its product. In 1926 it registered the name as a trade-mark under the Trade-Mark act of March 19, 1920, c. 104, 41 Stat. 533, 15 U.S.C.A. §§ 85, 121-128. In its advertising and on the packages in which the product was sold, appellant claimed the name as its trade-mark for the product. For seventeen years ...