Posted by Eugene Volokh:
Lies, Damn Lies, and Grape Nuts:
http://volokh.com/archives/archive_2009_05_31-2009_06_06.shtml#1244218570
Ann Althouse, guest-blogging at [1]InstaPundit posts about a [2]failed
consumer fraud lawsuit about "crunchberries": Turns out there are no
actual berries called "crunchberries" in Cap'n Crunch, but that's not
a problem, the judge ruled. (Who knew?)
But she also asks, "AND: Did anyone ever sue Grape-Nuts?," which is a
great excuse to mention [3]Nashville Syrup Co. v. Coca Cola Co., 215
F. 527 (6th Cir. 1914):
Since [1892], [the Coca Cola Co.] has continuously manufactured and
sold a syrup under the name, �Coca Cola�; and, used as a basis for
carbonated drinks, the syrup, under this name, has had a large sale
in all parts of the country.... Plaintiff enjoyed the exclusive use
of the name from 1892 until 1910. In that year, J. D. Fletcher, now
the active manager of the Nashville Syrup Company (herein called
defendant), became interested with others in the manufacture of a
somewhat similar syrup being sold under the name �Murfe's Cola.�
Later in that year they changed the name of their product to
�Murfe's Coca Kola,� and shortly afterwards, Mr. Fletcher became
sole owner of the business, and the product was named �Fletcher's
Coca Cola,� and has been sold by him and his successor, the
Nashville Syrup Company, under that name. [Coca Cola Co. sued.]
There remains the question whether the mark is deceptive.... [W]e
assume that if the registered words clearly carried deception, and
if their use really represented to the purchasers that the article
was something essentially different from the thing which they
actually received, the courts would not enforce any exclusive
rights under such registration, both because plaintiff would come
into court with unclean hands, and because such words could not be
within the fair contemplation of the act, when it refers to �any
mark * * * which was in actual and exclusive use as a trade-mark,�
etc....
The argument is that the use of the name, �Coca Cola,� implies to
the public that the syrup is composed mainly or in essential part
of the coca leaves and the cola nut; and that this is not true. The
fact is that one of the elements in the composition of the syrup is
itself a compound made from coca leaves and cola nuts. This element
becomes a flavor for the complete syrup, and is said to impart to
it aroma and taste characteristic of both. This flavoring element
is not in large quantity (less than 2 per cent.), but it is
impossible to say that it does not have appreciable effect upon the
compound. The question then is whether the use of the words is a
representation to the public that the syrup contains any more of
coca or of cola than it really does contain....
Plaintiff's counsel say, and so far as we see accurately say:
�The use of a compound name does not necessarily * * * indicate
that the article to which the name is applied contains the
substances whose names make up the compound. Thus, soda water
contains no soda; the butternut contains no butter; cream of tartar
contains no cream; nor milk of lime any milk. Grape fruit is not
the fruit of the grape; nor is bread fruit the fruit of bread; the
pineapple is foreign to both the pine and the apple; and the
manufactured food known as Grape Nuts contains neither grapes nor
nuts.� ...
We conclude that the name Coca Cola as applied to plaintiff's
product, while undoubtedly suggestive, is not so substantially and
really deceptive as to invalidate the registered mark.
References
1. http://pajamasmedia.com/instapundit/79589/
2. http://www.boingboing.net/2009/06/04/heartbroken-cereal-l.html
3.
http://www.archive.org/stream/cocacolaopinions00cocauoft/cocacolaopinions00cocauoft_djvu.txt
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