Before EVANS, MAJOR, and KERNER, Circuit Judges.
This is an appeal from a decree dismissing plaintiff's complaint which charged defendant with unfair competition and infringement of its registered trade-marks.
Plaintiff, J. S. Tyree, Chemist, Inc., has for many years been engaged in the manufacture and sale, in various states of the Union, including Wisconsin, of an antiseptic adapted for use in solution. Plaintiff is the owner of three trade-marks - "Tyree's Powder" dated December 2, 1919; "Tyree's Antiseptic Powder" dated January 9, 1923; and "J. S. Tyree" dated August 5, 1930. The first two marks were granted under the ten-year clause of the Act of 1905, 15 U.S.C.A. § 85, and plaintiff's use of these marks extends back to the 1890's. All of the marks are employed by plaintiff on an antiseptic powder used primarily for a douche. The powder is put up in a white box or package 2 1/8" wide, 2 1/8" long, and 4 1/2" deep, having a characteristic dark blue wrapper, through which wrapper, printed in a straight line, in black letters, appear the words, "Tyree's Antiseptic Powder," and a script signature, "J. S. Tyree," is superimposed across the label. The label features, in larger type than the balance of the printing, "Tyree's Antiseptic Powder." The Powder is sold under the name "Tyree's" or "Tyree," which is the dominating feature of the trade-mark registrations.
The labels which plaintiff affixes to its packages, besides bearing its trade-marks, describe the antiseptic powder as a general antiseptic for cuts, abrasions, non-venomous insect bites, as a foot wash for tender, tired and perspiring feet, as a gargle, and for offensive perspiration, in a douche solution.
Defendant, incorporated under the laws of Wisconsin in 1926, sells in the State of Wisconsin and in interstate commerce a medicinal preparation used as an astringent, deodorant and antiseptic lotion, put up in labeled bottles and packaged in a nile-green, black and white carton. Upon the solid green portion of the package, in black letters, appear the words -
On the upper two of three white parallel bands running horizontally around the lower third of the box appear the following words -
while the third and lowest band reads "Active Ingredients: Thymol, Menthol, Eucalyptol. Oils of: Wintergreen, Peppermint, Cassia. Glycerine 15%."
At the bottom, on the solid black portion of the package, appears -