Who’s Wearing Whose Trade Dress?

In 1915 the National Biscuit Company (NBC) filed 13 copyright infringement suits against such firms as Ohio Baking Company, Dake Cracker Company, Hargrave Bisuit Co., and Pacific Coast Biscuit Co. to enjoin these businesses from either infringing upon NBC’s brand names (including their registered “InerSeal”) and/or violating the sanctity of their packaging motifs.

In a few cases, injunctions were asked to stop the unauthorized use of similar trade names, NBC’s Uneeda Biscuit vs. Iwanta Biscuit, whereby the defendants were ordered to restrain fraudulent competition “in imitating the complainant’s packages or cartons in size and color and general appearance.”
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The list of offenses were often quite exact: “The defendants claim that they have the right to use the straight lines and cures in a trademark, that they have the right to use the word ‘seal,’ that they have the right to use white lines on a red background, and that they have the right to use cartons of a particular size and different colors which they have adopted for their packages, and that the complainant cannot appropriate any of these things so as to preclude others from their use.” (The outcome was in favor of NBC.)

One such case, found in National Biscuit Company’s annual book of Trade Mark Litigation: Opinions, Orders, Injunctions and Decrees Relating to Unfair Competition and Infringement of Trade Marks against the Pacific Coast Biscuit Company of New Jersey, were adjudged guilty of various violations of trade name and trade dress and ordered to retrain from using the “Swastika” or red end seal or trademark, “calculated to mislead or deceive. . . ”

It’s not at all clear what is more shocking, the exactitude of some of the mimicked package designs or the widespread application of the swastika logo, which is nonetheless so ubiquitous that registering it as a trademark is impossible. The courts were very strict about how close a competitor could edge up to the line of deception regarding trade name and package design.

 

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