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Horlick's Malted Milk Corp. v. Horlick.

June 6, 1944

HORLICK'S MALTED MILK CORPORATION
v.
HORLICK.



Appeal from the District Court of the United States for the Eastern District of Wisconsin; F. Ryan Duffy, Judge.

Author: Kerner

Before KERNER and MINTON, Circuit Judges, and LINDLEY, District Judge.

KERNER, Circuit Judge.

Plaintiff, Horlick's Malted Milk Corporation, appeals from a decree which found that defendant, Charles Horlick, had not infringed plaintiff's registered trade-mark and which granted insufficient relief against defendant's unfair competition.

Plaintiff's advertising has made the name "Horlick's" well and favorably known throughout the United States, and it is usually associated in the public mind with malted milk. In 1915 plaintiff first registered "Horlick's," the word appearing in outlined block letters printed in an are, for "prepared milk products, food products containing extract of malt, barley and wheat flour and dry extract of malt," and has since renewed it. In 1940, defendant registered the word "Horlick" in solid block letters printed in a straight line, as a trade-mark for "dog, cat, horse, and cattle foods," and also "Horlick of Horlicksville" for the same.

Horlick is defendant's family name, and also the family name of the founder of plaintiff's business. Both defendant and his ancestors rasided at Horlicksville, located in Racine County a short distance beyond the present city limits of Racine; and plaintiff has for many years abbreviated its name and address to "Horlick - Racine, U.S.A."

Defendant placed on the market a product in pellet form called "Horlick Dog Food." The package was about 7 1/2" high by 6" wide and had a depth of less than 2". The word "Horlick," printed in a straight line in red block letters 1 1/2" high, outlined in black, appeared prominently on both the front and reverse sides of the package. A drawing of a dog appeared thereunder, which drawing was 3 1/2" in height. Underneath the dog's head appeared the words, "Dog Food," on separate lines in letters 1" high. At the very bottom appeared the line, "Manufactured by Horlick of Horlicksville, Racine, Wisconsin," none of the letters of which exceed 1/8" in height. On the top and bottom flaps of the package, the word "Horlick" appeared in red block letters of the same size and style as on the front and reverse sides of the package.

Plaintiff sells its malted milk in packages and bottles of different sizes and shapes. Its package most nearly the size of defendant's package is 9" in height, each of the four sides of which are 6" in width. On the front and reverse sides, printed in an arc in white letters on a dark blue background, appear: Horlick's (1" block letters), The Original (small red letters), Malted Milk (1/2" block letters), and a drawing of three cows is immediately below. "The Great American Food Drink for All Ages" is printed in blue letters on the next two lines. At the bottom the words, "Manufactured by Horlick's Malted Milk Corporation, Racine, Wisconsin," are printed over the word "Horlick's" appearing in red script in a slanting line.

There was no direct competition between defendant's business and plaintiff's business, and no one purchased Horlick Dog Food believing that it was malted milk or food for human consumption. The only similarity between plaintiff's and defendant's packages was the name "Horlick's" and "Horlick," the printing of which was even in a different style, size and color. In spite of this, purchasers familiar with Horlick's Malted Milk, upon seeing the defendant's package, concluded that defendant's dog food was manufactured and sold by the plaintiff. Many witnesses testified that they thought defendant's product was made by the plaintiff. (For a slightly more detailed statement of the facts, see 50 F.Supp. 417.)

Because he found that the two things principally contributing to this reaction were the uncommon name "Horlick" known widely in connection with malted milk and the phrase "Horlick of Horlicksville, Racine, Wisconsin," the District Court entered a permanent injunction restraining the defendant from:

(a) Using the name "Horlick" on his packages or in any manner in connection with the manufacture and sale of dog food without using in association therewith some other word or words which shall distinguish his product from plaintiff's product, which word or words shall be printed in type of [at] least one-half the size of the type used in printing the name "Horlick."

(b) Using the phrase "Manufactured by Horlick of Horlicksville, Racine, Wisconsin," without using in connection therewith the initials, word or words as set forth in (a) above.

Feeling that the District Court did not grant it the full relief to which it is entitled, plaintiff appeals from that portion of the decree permitting defendant (1) to use the name "Horlick" as a brand-name or designation for his product, and (2) to use in connection with the name "Horlick" in indicating the manufacturer some distinguishing word or words displayed in type only half the size of the name "Horlick."

It is plaintiff's contention that defendant should be required to label his product "XYZ Dog Food," and to state thereon "Manufactured by ...


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