# Petitioners Brief — Skinner Manufacturing Co. v. General Food Sales Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 1944
- **Citation:** 323 U.S. 766

## Text

IN THE
Supreme Court of the United States

o-—0
OCTOBER TERM, 1944
o—O
Be isitsanctsacutee
Oo—O

SKINNER MANUFACTURING COMPANY,
a Nebraska Corporation,

Petitioner,
vs.
GENERAL FOOD SALES COMPANY, Ine.,
a Delaware Corporation,
Respondent.

Oo—O

BRIEF IN SUPPORT OF PETITION FOR
CERTIORARI

o—0 —
REPORTS OF OPINIONS IN COURTS BELOW

The opinion of the District Court of Nebraska from
which appeal was taken to the United States Cireuit
Court of Appeals is found in 52 Federal Supplement at
pages 432 to 452, inclusive.

The opinion of the United States Circuit Court of
Appeals for the Eighth Circuit, on account of which this
Writ of Certiorari is sought, is not yet published in an
official report, but is found on pages 3 to 11 of Vol. VI
of the Transcript of Record.

Hisar Ree ERR A

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Aiea aR es

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26
JURISDICTION

The jurisdiction of this Court is predicated upon Sec-
tion 240 (a) of the Judicial Code as amended (A. 14).
The jurisdiction of the District Court and United States
Cireuit Court of Appeals were predicated upon Section 17
of the 1905 Trade-Mark Act (A. 20) and Section 6 of
the 1920 Trade-Mark Act (A. 21).

o—o———

STATEMENT OF CASE

A concise statement of the case with references to the
record is found on pages 2 and 15 of the Petition for
Writ of Certiorari to which this Brief is appended, and
by reference is hereby incorporated in this Brief.

O-——0O

SPECIFICATIONS OF ERRORS INTENDED TO BE
URGED

The specifications of errors intended to be urged are
found under ‘‘Questions Presented’’ on pages 16 to 19 in
Petition for Writ of Certiorari to which this Brief is
appended, and by reference are hereby incorporated in
this Brief.

Oo—O

APPLICABLE DECISIONS, STATE OR FEDERAL

As stated in Note 1 of the Opinion of the Highth
Circuit Court of Appeals (T. Vol. VI, p. 9), “It is not
contended that the applicable local law differs substan-
tially from the general law, and the parties rely upon
Federal precedents.’? The Lower Court discussed this
matter thoroughly in 52 F. S. 482 at pages 439-441, and

IEP AD DINGS ey SALE

]

tomer confusion’

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acquired a secondary meaning, (3) that the Respondent
had the right to use the term ‘*Raisin-BRAN”’ in spite
of its long exclusive use by the Petitioner as a_trade-
mark, and (4) that the Respondent was ‘‘not obliged to
so guard his competitive methods that even a negligent
or inattentive purchaser will be protected from confu-
sion’? (52 F.S. 450), and ‘‘there is no probability of any
ordinary cautious member of the public, using reasonable
‘are and attention in purchasing, being deceived’? (I. 59,

T. 122).

Thus we see that the Trial Court shut its eyes to
positive, credible evidence of confusion on the ground that
the confusion was due to the use of the term ‘*Raisin
Bran’? and the Respondent could not be held responsible
for such confusion, and those confused were either ‘*neg-
ligent or inattentive’? purchasers, and it is only confusion
of ‘fa cautious member of the public, using reasonable

,

care and attention in purchasing’? which counts.

As to the character of the witnesses who were shown
positively to have been confused, the Court does not doubt
their credibility, but insists that they were ‘negligent and
eareless.’? The evidence does not justify holding that any
of the witnesses who were confused could be deseribed as
negligent (T. 288-289, 294, 297, 537, 371). It does not
appear that their conduct was any different from that
of the average purchaser of such product. The law does
not hold that it is only contusion on the part of a

,

‘Cautious’? purchaser ‘tusing care and attention in pur-
chasing’? which is of consequence. An infringer of a
well-known trade-mark is chargeable with the confusion
or deception of a casual purchaser, who may even be
thoughtless, unwary, ignorant, unthinking or even care-

4)

less, such as a child or one who makes his purchase in a

rush, and his selection with a mere elance of the eye.'

To refute the Petitioner’s positive credible evidence
of confusion, the Respondent elicited from a number of
grocer witnesses the statements that they did not know of
any confusion occurring in their stores (A. 13). This evi-
dence was purely negative testimony and of no weight
against the positive credible testimony which was adduced.
De Griselles v. Gans, 116 Neb. 835, 219 N. W. 235, 239;
Bergman v. Northern Pacific R. R. Co., sh C. C. A. 34
F. 2d 580, 582; Window Glass Machine Co. v. Pittsburg
Plate Glass Co., 46 F. 2d 484, 494.

10 The following cases illustrate the type of confusion for which an in-
fringer is considered responsible: “Ordinarily the prospective pur-
chaser * * * acts quickly. He is governed by a general glance.
The law does not require more of him,” Coca-Cola Co. v. Chero Cola
Co., 273 F. 755; “The law does not require nice distinction or
discrimination from the ordinary purchaser,” R. B. Davis Co. v.
Sher, 125 N. J. E. 316, 5 A. (2d) 49, 51; “The usual purchaser * * *
merely looks, perhaps hastily,” Ward Baking Co. v. Potter-Wright-
ington Co., 228 F. 398, 401; He may be “careless as to details,”
Little v. Kellam, 100 F. 353; Or “unsuspecting,” Celluloid Mfg. Co.
v. Cellonite Mfg. Co., 32 F. 94, 97; Or “unthinking, who does not
stop to analyze,” Florence Mfg. Co. v. J. C. Dowd Co., 178 F. 73, 75;
Or he “may rely on his first impression,” In re Inderrieden Canning
Co., 277 F. 613, 614; He may be the ordinary retail purchaser * * *
“not usually of a high degree of intelligence * * *,” N. K. Fair-
banks Co. v. R. W. Bell Mfg. Co., 77 F. 869, 876: He need not be
“the careful and discriminating purchaser,” Auto Acetylene Light
Co. v. Presto-O-Light, 264 F. 810, 812; He is “not bound to study
or reflect,” Pillsbury v. Pillsbury Washburn Mills Co., 64 F. 841,
847.

The infringer may be held responsible for confusion of “the
servant girl or a child sent to the grocery store * * *' Ohio Baking
Co. v. National Biscuit Co., 127 F. 116, 120; “The purchaser with
not very definite or clear recollection,” Northern Warren Corp. v.
Cosmetic Co., 18 IF. 2d 774 (cited with approval in F. W. Fitch v.
Camille, Inc., 8th C. C. A.. 106 F. 2d 685; Or one who “picks up a
package from * the counter while purchasing a newspaper (or
other groceries) on the way to or from his train,” J. N. Collins Co.
v. Paist, 14 F. 2d 614, 615; Or one who “acts upon the moment,”
Pillsbury v. Pillsbury Washburn Mills Co., supra: And the wrongful
infringer is rightly chargeable with acts of retailers who are enabled
to palm off the infringer’s product because of the use of his rival’s
trade name, Saxlehner v. Seigel-Cooper Co., 179 U. S. 42, 45 L. Ed.
77: Coca-Cola Co. v. Gay-Ola Co., 200 F. 720; F. W. Fitch Co. v.
Camille, Inc., 8th C. C. A. 106 F. 2d 635: Reid Murdoch & Co. v.
H. P. Coffee Co., &th C. C. A.. 48 F. 2d 817.

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The Respondent in the Lower Court argued that he-
cause only a few cases of confusion were shown, there
was in facet no confusion. This is not sound law. Many
persons who were confused would never realize that tact
and, of course, would not be available for testimony ;
others who were confused would not be known to the
Petitioner, particularly where the Petitioner was called
upon to obtain evidence from a purchasing public which
ran into the hundreds of thousands and which was seat-
tered over the entire United States. Recognizing this
difficulty and knowing the impracticability of producing
a multiplicity of witnesses, the Courts hold that ‘‘actual
deception having been shown establishes the likelihood of
deception.”?> BE. W. Fitch Co. v. Camille, Inc., 8th C. C.
A., 106 F. 2d 635, 640; see also Gebron, Tne. ve Gebron
Cleaners, 40 IF. S. 150, 155.

Palming Off

The Trial Court’s finding that there was no palming
off of Respondent’s product for the product of the Peti-
tioner (I. 42, T. 125) is likewise predicated upon errone-
ous conclusions of law. It is submitted by the Petitioner
that the foregoing positive evidence does not support the
Trial Court’s finding that ‘Said product has not been
passed off as that of plaintiff’? (Ff. 42, T. 123).

The first sale of Respondent’s product which it desig-
nated **Raisin Bran’? was made about May 1, 1942 (T.
000). On May 16, 1942, Petitioner obtained and served
a temporary restraining order upon the Respondent (T.
I1-lo). The Respondent paid no heed to the restraining
order and up to September 1942 had sold 3,129,984 pack-
ages of its produet (T. 500-501).

ai

YQ?

The Respondent limited its sales territory to the ter-
ritory where it knew Petitioner had its greatest volume
of business (T. 500-501) and introduced its product with
a large newspaper and radio advertising campaign
throughout the south. In this program it emphasized
a sale of its product at two cents per package (Def.’s
Exs. 50, 51-A to W, 02-\ to M, 53, T. 515-017).

Beeause of this two-cent special price and the profit
in the deal to them, retail grocers pushed the Respondent’s
product, advertising it as just ‘‘Raisin Bran,’’ or if they
used the word ‘‘Post’s,’’ that — was in smaller type
than the words ‘*Raisin Bran’? (A. 10; T. 274, 290, 297,
298, 330, 344, 364, 369, 375, 408, 415, 4385, 475, 532, 038,
5d8, SSG, SVU, 598, GUG, 620, 628, 650, 639, 664, G66, O93; Lh.
gts 66-G-1, 66-H-1, T. 281, 282; K. 59, T. 266; Ki. 79,

», 336). Several retailers bluntly stated that because of
ae two-cent special price they palmed off Respondent’s
package on orders for Petitioner’s product (T. 274, 297,
415, 538, 606).

After Respondent’s product came upon the market, a
number of grocers who had previously been handling Pe-
titioner’s product and whose customers had been calling
for it under the designation ‘*Raisin Bran,’’ delivered
the Respondent’s product on such orders, although several
of such grocers testified that they knew the customer had
intended to order Petitioner’s product (T. 274, 296, 29%,
415, 538, 557, GOV, 6UG, GLO, 620, 659, 665, 666, 672, 679,
693, 694). Several customers testified that Respondent’s
product was passed to them on orders for Petitioner’s
product (T. 296, 310, 373, 398, 399, 478). The grocers
who admitted this palming off gave as their excuse that
they delivered whatever was most handy, or whatever had

93

the most profit, or whatever was slowest to move, and
their testimony shows that they are still following such a
practice.

The Trial Court in its Opinion comments on this
testimony as follows: ‘‘For some period following the
advent of the Kellogg and Post products, customers order-
ing ‘Raisin Bran’ without other particularization in ser-
vice grocery stores, and expecting to receive the plaintiff’s
product

K

were frequently served with one or the
other of the competing cereals. Grocers explained these
incidents variously, some saying that they delivered
‘whichever Raisin Bran was handy,’ or ‘whichever Raisin
Bran was in stock,’ and a few, more frank perhaps than
the others, ‘whichever one was the most profitable one to
the seller’? (52 F. $8. 451); but the Court excuses this by
saying, ‘‘In * * * the retail trade the practice developed
quickly of inquiring of the purchaser which brand was
desired and making delivery accordingly if the preferred
item was available’? (52 F.S. 451). This last sentence ts
contrary to the weight of the evidence which showed that
14 of the retail grocer witnesses testified that when their
customers want the product they still ask for ** Raisin
Bran’’ without sage tregid the name of the producer (T.
296, 298, 324, 328, 364, 369, 415, 464, 465, 600, 605, 606,
665, 672); and as pointed out above, most of these wit-
nesses testified that they still frequently deliver which-
ever product is most handy, or whatever they have the
most profit in, or whichever is the slower moving, on
orders for just ‘‘Raisin Bran,’’ without asking the cus-
tomer whose product she desires.

In the face yi the use of Petitioner’s tradeanark (KB.
3, T. 737; BK. 9, T. 723), the Trial Court found that the

94

passing off of Respondent’s product for that of the
Petitioner was ‘‘attributable to * * * careless merechandis-
ing practices by local grocers rather than to any purpose
of material consequence * * * arising out of any conduct
of the defendant’? (F. 40, T. 122-123). Such a conclusion
was disposed of in the case of F. W. Fitch Co. v. Camille,
Inc., 106 F. (2d) 635, as follows:

“But it is urged that no wrongtul act of the de-
fendant caused a single instance of substitution or
confusion. A similar argument was presented in Wolf
Bros. & Co. v. Hamilton Brown Shoe Co., 8th Cir.
206 F. 611, 617. In disposing of this contention, this
Court said: ‘If a manufacturer or wholesale dealer
willfully puts up goods in such a way that the ulti-
mate purchaser will be deceived into buying the goods
of another, it is no defense that he does not deceive
and has no intention of deceiving the retailer to
whom he himself sells the goods. The question is
whether the defendants have or have not knowingly
put into the hands of the retail dealers means of de-
ceiving the ultimate purchaser.’ See also Reid Mur-
doch Co. v. H. P. Coffee Co., 8th Cir., 48 F. 2d 817;
New England Awl and Needle Co. v. Marlboro Awl
& Needle Co., 168 Mass. 154, 46 N. E. 386.’’ (Note:
The opinion in the New England Awl case was writ-
ten by Justice Holmes, later of the United States Su-
preme Court.)

It is clear from the foregoing that the Trial Court’s
findings that there was no confusion and no palming off
were predicated upon its erroneous conclusions of law
that it was impossible for ‘‘Raisin-BRAN”’ to acquire a
secondary meaning, and its finding that no secondary
meaning had been established, and it is submitted that the
Kighth Cireuit Court of Appeals erred when it held that
such findings were binding upon the Appellate Court (T.,
Vol. VI, pp. 8-9).

95

12. The Trial Court erred when it found that there
was no likelihood of confusion and palming off of Re-
spondent’s goods for those of the Petitioner; and the
Eighth Circuit Court of Appeals erred when it concluded
that such findings were binding upon the Appellate Court.

As pointed out above, there was positive proof of
confusion and of palming off of Respondent’s product for
that of the Petitioner. This in itself is the most persua-
sive evidence one could find of the likelihood of confusion
and palming off. E. W. Fitch Co. v. Camille, Ine., 8th C.
C. A., 106 F. 2d 635, 640. See also Gebron, Inc. v. Gebron
Cleaners, 45 F. S. 150, 155.

Where the evidence shows that it was apparently the
effort of the neweomer in a competitive field to create
points of similarity betwen the newcomer’s designation
and label and that of the owner of an established trade-
mark, rather than to create outstanding points of differ-
ence, the Courts assume as a matter of law that confusion
and palming off will naturally result from such behavior,
and that such was the neweomer’s intention. Guggenheim
v. Cantrell & Cochrane, C. C. A., D. C., 10 F. 2d 895, 896;
Helmet Co. v. Wm. Wrigley, Jr.. Co., 245 F. 824-830;
Coca Cola Co. v. Cleo Syrup Corp. 48 FB. S. 565, 139 F.
2d 416.

Evidence of Respondent’s Intention to Deceive

The product which Respondent introduced on_ the
market in competition with Petitioner’s Raisin Bran, was
composed of a breakfast food cereal which it designated
“40% Bran Flakes’? (T. 496). The Respondent had spent
$14,000,000.00 advertising this product as ‘40% Bran
Flakes”? (T. 497). Mr. Eldrege, Vice President of the

96

Respondent, named the new product ‘Raisin Bran’? (T.
496), although he admitted that ‘40% Bran Flakes With
Raisins’? would have been an apt designation for the
product (T. 497).

Prior to April 1942, the Respondent had marketed its
“40% Bran Flakes’? in red and brown colored packages
(E. 100-A to Q, T. 715); but the Respondent made the
color and design of its product to which it applied the
designation ‘‘Raisin Bran’’ so that it was more like the
Petitioner’s package than Respondent’s old ‘40% Bran
Flakes’? package; and as pointed out above, the Respond-
ent chose a color similar to a color which is conspic-
uous on Petitioner’s package, and emphasized the words
‘Raisin Bran’? (A. 9). In its advertising Respondent also
emphasized the words “Raisin Bran’? (4. 53, T. 516-
518).

Before Respondent decided to enter into competition
with Petitioner’s product, it obtained reports showing
the amount of business done by Petitioner in ‘*Raisin-
BRAN” (T. 496) and knew that the great volume of
Petitioner’s business was in the south (T. 504, 505) and
Respondent limited its sales and intensive advertising to
the territory where Respondent had done its greatest vol-
ume of business (‘T. 500-001), and started its sales pro-
motion with a two-cent sale of its new product (T. 920-
524; KB. 50, 51-A to W, 52-\ to M, 538, T. 515-517).

With the foregoing uneontradicted evidence in the
record, the Trial Court coneluded ‘It is acknowledged,
and found to be a fact, that the defendant entered the
field deliberately, and after careful study of existing mar-
keting conditions, entered actively into the plaintiff’s

97

most profitable territory in the southern states. It adver-
tised extensively by radio and otherwise recommended its
product as ‘Post’s Raisin Bran’ ’’ (52 F. 8. 400).

Erroneous Conclusions of Trial Court

The Trial Court further said, ‘‘That the defendants
may profit, that they even formally desired and planned
to profit, from the advertising of the plaintiff’s product
through many years, especially in the south, seems prob-
able. But that is held not to be objectionable’’ (52 F.S.
452). ‘Certainly there is an utter failure to establish any
design or intention on the part of the defendant to that
end’’ (confusion and palming off) (52 F. S. 401).

Predicated upon the foregoing conclusions and the
conclusions that ‘‘Raisin-BRAN’’ could not acquire a
secondary meaning and was open to use by the Respond-
ent, the Court then found, ‘‘There is no probability of
any ordinary cautious member of the public, using reason-
able care and attention in purchasing, being deceived
into believing that in purchasing a General Foods Cor-
poration earton containing said product, he was purchas-
ing the product marketed by the plaintiff because of any
similarities between the cartons used by plaintiff and by
General Foods Corporation in packing their respective
products.

* ¥

This specifie finding is premised partly
upon the Court’s own factual conclusion, based upon fre-
quent, long, and careful examination of specimens of the
actual packages, and partly upon the testimony of people
incident to the marketing of the three similar products’’
(F. 39, T. 122).

The Court’s ‘‘long and careful examination’’ of the
cartons was not the right way to determine whether or

ae

98

not there is likelihood of confusion. To determine whether
or not a customer is likely to be confused, the Court must
view the packages under the usual conditions prevailing
in the trade which would confront the casual, unthinking,
unintelligent and unwary purchaser; Queen Mfg. Co. v.
Isaac Ginsburg & Bros., 8th C. C. A., 258 F. 2d 284, 287;
F. W. Fitch Co. v. Camille, Inc., 8th C. C. A., 106 F. 2d
635; and the packages should not be placed side by side
to see if differences can be observed. Reid Murdoch &
Co. v. H. J. Coffee Co., 8th C. C. A., 48 F. 2d 817. The
Court should look to see if there are points of similarity
in important features of the label which are likely to con-
fuse the unwary purchaser. P’echeur Lozenge Co, v. Na-
tional Candy Co., 122 F. 2d 318, 820.

The ‘testimony of people incident to the marketing
of the three similar products’? to which the Court refers
in its Finding 39, supra, was evidence of various wit-
nesses who, when presented with the packages one after
another or side by side, testified that they would not be
confused (A. 13). This is not competent evidence to as-
certain whether or not there is likelihood of confusion and
palming off. Reid Murdoch & Co. v. H. J. Coffee Co.,
supra.

The Trial Court concluded its discussion of its finding
that there was no likelihood of confusion and palming off
by saying that this likelihood is now remote because the
General Food and Kellogg products bearing the infring-
ing designations ‘‘were respectively introduced by accom-
panying intensive advertising campaigns, with the con-
sequence that knowledge of their existence was spread
quickly among wholesale and retail grocers and the pub-
lic * * * in the localities where General Foods’ * ne

99

and Kellogg’s products were introduced * * * and ulti-
mate consumers
the competition * * * and to designate the brand which
they preferred’? (52 F. S. 451). This is but another way
of saying that if an infringer is powerful enough to put

* came quite early to understand

on a sudden smashing drive of advertising and sales pro-
motion which will quickly destroy a long established and
valuable secondary meaning of a competitor’s trade-mark,
and change the public understanding with respect thereto
by devastating radio and newspaper campaigns, the situa-
tion presents no such likelihood of confusion and palming
off as to justify the charge of infringement.

The rights of parties in cases such as this must be
measured as of the time just preceding the advent of the
infringing practices. Unless the injured party acquiesced
in the infringement or slept upon his rights, he cannot
be deprived of them by a blitz of the wrongdoer.

It is submitted that the Trial Court clearly erred
when it found that there was no likelihood of confusion
and palming off of Respondent’s goods for those of the
Petitioner by reason of Respondent’s acts of appropria-
tion of Petitioner’s trade-mark and simulation of its
label, and it is further submitted that the Kighth Cir-
euit Court of Appeals erred when it concluded that it
was bound by such finding (T. VI, p. 10).

13. The Trial Court erred when it concluded that
the equities in this case are in favor of the Respondent
and against the Petitioner; and the Eighth Circuit Court
of Appeals erred when it affirmed such an opinion.

There is absolutely no evidence that the Petitioner
at any time, in any way, unlawfully harmed or damaged
the Kellogg Company or General Foods.

LOO

The Petitioner,—a smal] manufacturer (I, 12, T. 160)
compared to Kellogg and General Foods (KK. 120, 120A,
121, T. 721, 722),—had for seventeen years conducted
its business in a proper manner, and by industry and
the expenditure of over $600,000.00 (Ii. 11, T. 164), which
was no mean sum to it, had built up a business which
grossed $806,000.00 in the first eight months of 1942 (EK.
13, T. 165) and showed net earnings of nearly $40,000.00
for the same period (I. 19, T. 181-182). The Petitioner
enjoyed one and one-half per cent of the total cold cereal
business of the country, between three per cent and four
per cent of all the cold cereal business in the southeast
section of the country, and about eight per cent of the
cold cereal business in the southwest. It had about eight
per cent of all the bran cereal business in the country,
over twenty per cent of all the bran cereal business in
the southeast and between twenty-five and thirty per cent
of the bran cereal business in the southwest. The Peti-
tioner occupied third place among the distributors of
part bran cereals in the southeast and second place in
the southwest (T. 504; F. 17, T. 112). This business was
built about and upon Petitioner’s trade-mark ** Raisin-
BRAN”, which mark Petitioner had advertised and
treated through the entire course of its use, as the trade-
mark and brand name of its product (I. 15, } 110: X.
193-202, 209, 229-241).

At the time the Petitioner created the term ‘ Raisin-
BRAN”? standing alone and applied it to its breakfast
food product, the term had no particular meaning (pp-
31 to 33, supra). After seventeen years’ exclusive use
by the Petitioner, users of the product scattered through-
out the United States had come to learn that the Peti-
tioner’s trade-mark ‘‘Raisin-BRAN’’ stood for the Peti-

101

tioner’s particular product (pp. 69 to 69, supra), and
thousands of consumers knew the source of origin of
the product (F. 20, T. 113), and although many others
did not know and did not care from what source the
product originated, they well knew and understood that
the trade-mark ‘‘Raisin-BRAN’’? meant the particular
product which they had been accustomed to purchasing
and which they desired (pp. 65 to 69, supra).

In April 1942, the Kellogg and General Foods Com-
panies deliberately, after study of Petitioner’s business
and marketing methods and with full knowledge thereof
(F. 27, T. 115), invaded Petitioner’s best territories, ap-
propriated Petitioner’s trade-mark **Raisin-BRAN’’ (02
F. S. p. 487).

Petitioner submits that under these circumstances, it
was error for the Trial Court to say that ‘*the equities
are with the defendant and against the plaintiff’? (92
F. 8. 452). Surely the mere size of the Respondent and
their overwhelming predominance in the breakfast food
field, does not justify such a statement. Certainly the
mere fact that the trade name ‘‘Post’s’’ is well known
to the public does not justify an infringement of another’s
trade-mark.

There is no reason for any such rule, The Respond-
ent in this case, and the Kellogg Company, Respondent
in a sister case, stood by for 17 years and watched the
Petitioner plow and seed and harrow the field. No patent
monopoly barred them from entering the same field,
nothing but their doubt as to the success of the venture
held them back, they have other apt names for designat-
ing competing products. Now, when the crop is ready for
the harvest because of the foresight, the industry and the
expenditure of hundreds of thousands of dollars by a

jE

102

small competitor, it is submitted it is not equitable for
the two largest purveyors of breakfast foods in the United
States to step in and, by infringing Petitioner’s trade-
mark, reap the harvest.

14. The Trial Court erred when it failed to grant
the Petitioner the relief prayed for; and the Eighth Cir-
cuit Court of Appeals erred when it affirmed the de-
cision and opinion of the Trial Court.

In the foregoing portions of this Brief, it has been
pointed out that the Respondent has wrongfully infringed
the Petitioner’s trade-mark, ‘‘Raisin-BRAN’’ which had
acquired a secondary meaning and which had not become
a free word at the time of the commencement of such
infringement. The evidence also shows that the Petitioner
never intentionally abandoned its claim to the exclusive
use of the term ‘*Raisin-BRAN’’ as a trade-mark for
Petitioner’s breakfast food (T. 177). The evidence also
shows that the Respondent will continue to infringe the
Petitioner’s trade-mark unless enjoined and restrained
from doing so (I. 17, T. 178-179).

Granting the Petitioner the relief which it seeks will
not deprive the Respondent of the ability to select an
appropriate name for its product (T. 497; 52 F. S. 401),
nor to design an attractive label which will in no wise
infringe upon Petitioner’s mark and label. As was said
in the case of British-American T. Co. v. British-American
CG. S. Co., 211 F. 933, 935, ‘‘to change the defendant’s
name can injure no one. To retain it may mislead the
public, confuse the trade and seriously injure complain-
ant’s business. When such an alternative presents itself
the duty of a court of equity is plain, viz. to stop the
unfair proceedings in limine. ~ * * If the defendant in-
tends to deal fairly, it can do no harm to change its name.

103

If it intends to use the name unfairly, it should be com-
pelled to change it.”’

in the Lower Court the Respondent insisted that the
purpose of the Petitioner’s suit was ‘‘protection for its
business in the product, not for its own good will,’’ and
in support of such statement cited the following: ‘*Shar-
ing in the good will of an article unprotected by patent
or trade-mark is the exercise of a right possessed by
all—in the free exercise of which the consuming public
is deeply interested.”? Kellogg Company v. National Bis-
cuit Co., 311 U.S. 111, 122. The Trial Court quoted the
foregoing extract from the ‘*Shredded Wheat’? Case with
approval and said, **The distinction seems to lie between
sharing in the good will of a product, which is lawful,
and appropriating the good will of a producer, which is
not to be tolerated’? (52 F. 8S. 452). Of course, if the
Trial Court’s conclusion that the Respondent had the
right to use the Petitioner’s mark **Raisin-BRAN’’ were
correct, the Trial Court’s conclusion on the above con-
tention of the Respondent would have been correct; but
since the Trial Court’s conclusion as to the right of
the Respondent to use Petitioner’s trade-mark ‘*Raisin-
BRAN” is in error, so also is the Trial Court’s coneclu-
sion that the purpose of this proceeding was to protect
the good will inherent in the product rather than the good
will inherent in the trade-mark.

Under the facets and law in this case, the Petitioner
is entitied to a permanent injunction as prayed. .frm-
strong Paint & Varnish Works v. Nu-Eamel Corp, 300
U. S. 315; N. AK. Fairbanks Co. v. Luckel, King & Cake
Soap Co., 102 F. 827, 331; Fuller v. Huff, W4 BF. 141;
Beneficial Industrial Loan Corp. v. Kline, 8th C. C. A,
132 F. 2d 520.

om

RRP SMe ay PRA Ras SM 8

104

CONCLUSION

Counsel for the Petitioner submit that when this
Court checks the references to the record, particularly
those found in Appendix Note 8 (¢), (d), (e), (g), (h),
(i), and Appendix Note 4 (e), (f), (g), (bh), Gi), and
Part 11 of the Argument (pp. 87 to 94, supra), it will ap-
pear that, in view of the erroneous Conclusions of Law
npon which the Trial Court predicated its Findings of
Kaet, and decision, as pointed out in the Argument, supra,
the Kighth Circuit Court of Appeals erred when it failed
to review the evidence and the Trial Court ’s Findings of
Fact.

Petitioner’s Counsel realize that the trial and review
of this case has imposed a substantial burden upon the
Courts. The magnitude of this task, however, Was not
due to any action of the Petitioner. The Petitioner was
the defenseless viciim of a ruthless infringement, and
when the Petitioner sought to bring the infringer to time,
every conceivable defense of fact and of law was brought
to bear, and Petitioner was compelled to meet these issues
regardless of the resulting size of record and brief,

To alleviate the matter, Counsel for the Petitioner
have made eareful research of the authorities and have
done all in their power to shorten this brief and lighten
the work of the Court, and at the same time meet all
important issues fairly. In the preparation of the Ree-
ord, Petitioner’s counsel were most careful to be as
complete and accurate and fair to the Court and to the
Respondent, as possible, and were rewarded by the fact
that the Respondent found it necessary to suggest. but
few additions to the Record, Counsel for the Petitioner
have been equally careful to be accurate and fair in their

105

statements of fact and references to the Record as such
matters appear in this brief; and in’ the discussion of
eases and extracts taken from them, have been meticulous
‘n their endeavor not to cite or quote in any manner cal-
culated to mislead; and Counsel for the Petitioner hope
and trust that such efforts will lighten the work of this
Court in the review of this case.

Counsel for the Petitioner sincerely believe that a
great injustice to the Petitioner, and to the purchasing
public, will result in an affirmance of the decision of the
Lower Court in this case, and that the matter is of Na-
tional importance, not only because of the wide-spread
use of Petitioner’s product, but also because a clarifica-
tion of the numerous issues raised is desirable in order
to insure integrity and security in commercial transactions
which will be affected by the final decision.

Respectfully submitted,

WituuaMm Rrirenir, Omaha, Nebraska,

C. Bare Hovey, Kansas City, Missouri,
Attorneys for Petitioner.
Of Counsel:
Rirente & SWENSON,
Omaha, Nebraska.

W. Ross Kine,
Omaha, Nebraska.

ata a a

106
APPENDIX NOTES

Note 1. Evidence with respect to Petitioner’s busi-
ness and business methods: T. 161 and 171, 186, 190-241,
242, 250-258, 258-261, 263-267, 267, 270, 282, 334, 403, 416,
430, 440, 465, 480, 718 and 720.

Note 2. Evidence with respect to Respondent’s busi-
ness and business methods: T. 493-507, 516-524.

Note 3. Consumer witnesses (91):

(a) Those who had used Petitioner’s product prior
to advent of competition (86). T. 287-292, 295, 302,
303, 304, 305, 308, 310, 331, 331, 338, 340, 342, 351, 352,
353, 357, 361, 362, 370, 372, 373, 380, 392, 397, 397, 399,
418, 423, 424, 425, 426, 435, 437, 439, 459, 459, 460, 461,
467, 473, 478, 479, 509, 528, 530, 534, 541, 543, S44, 545,
548, 549, 551, 580, 582, 584, 591, 593, 601, 603, 608, 611,
613, 617, 621, 630, 632, 634, 642, 644, 653, 657, 667, 669,
670, 680, 682, 684, 696, 697, 699, 712.

(b) Consumer witnesses who had not heard of or
used Petitioner’s product (5): T. 508, 529, 531, 951, 713.

(c) Consumer witnesses who knew that ‘*Raisin-
BRAN’’ was a product of Skinner Manufacturing Com-
pany (34): T. 272, 289, 292, 303, 303, 304, 306, 308, 310, 332,
338, 341, 342, 351, 363, 372, 402, 424, 425, 427, 435, 439,
460, 462, 468, 546, 552, 558, 583, 585, 633, G44, 656, 658,
671.

(d) Consumers who testified there was only one
source of product prior to April, 1942, though they did
not know the name of such source (5): T. 331, 461, 474,
479, 631.

(e) Consumers who identified Petitioner’s package
as only one they had been accustomed to purchase (37): T.

107
973, 288, 292, 302, 303, 304, 305, 308, 310, 331, 332, 338,
342, 351, 357, 361, 362, 371, 372, 380, 393, 397, 399, 418,

425, 426, 435, 439, 459, 460, 461, 468, 473, 478, 479, 991,
688.

(f) All of tiose witnesses listed in paragraph (e)
above knew that Skinner was the distributor, except (2):
T. 479, 534.

(g) Consumer witnesses who testified that when
they wished Petitioner’s product they ask for ‘‘Raisin-
BRAN”’ (17): T. 228, 304, 306, 308, 311, 361, 371, 372,
384, 393, 399, 426, 435, 440, 478, 479.

(h) Consumer witnesses who mistook Respondent’s
package for Petitioner’s (1): T. 259.

(i) Consumers who testified that mark ‘‘Raisin
Bran’’ meant Petitioner’s product (14): T. 28, 314, 361,
381, 393, 399, 408, 411, 424, 428, 487, 535, 546, 689.

Note 4. Retail grocer witnesses (61):

(a) Retail grocer witnesses who had personal service
and delivery (37): 273, 290, 293, 296, 295, 323, 327, 363,
369, 374, 414, 431, 434, 447, 449, 464, 465, 474, 937, 959,
359, 597, 599, GU4, 605, G18, 625, 624, 629, 646, 650, 655, 664,
671, 675, 691, 694.

(b) Retail grocer witnesses who had exclusively

self-service stores (15): T. 327, 374, 414, 484, 447, 464,
474, 537, 599, 604, 605, 618, 629, 650, 691.

(c) Retail grocers whose testimony did not indicate
the type of their service (9): T. 529, 347, 389, 407, 524,
532, 586, 622, 662.

(d) Retail grocers who had never heard of Peti-
tioner’s product (3): T. 526, 526, 527.

weighs ctor

SRN TEER EM SY

*

108

(e) Retail grocers who knew source of Petitioner’s
product (54): T. 273, 275, 290, 294, 297, 298, 324, 327,
330, 344, 348, 354, 355, 364, 368, 370, 375, 405, 416, 432,
434, 448, 450, 452, 464, 467, 471, 475, 525, 537, 597, 561,
587, 595, 600, 605, 607, 620, 622, 623, 629, 636, 638, 651,
653, 663, 665, 675, 693, 695 704, 706, 710.

(f) Retail grocers under class (a) above, who testi-
fied that before the advent of the Post and Kellogg com-
peting products, their customers called for Petitioner’s
product under the trade name ‘‘Raisin-BRAN’’, standing
alone (24): T. 274, 297, 298-299, 364, 368, 369, 376, 432,
450, 452, 464, 466, 475, 560, 637, 638, 651, 656, 665, 679,
703, 706, 711.

(g) Retail grocers under class (f) above, who testi-
fied that when their customers asked for just ‘‘Raisin-
BRAN’’, they desired Petitioner’s product (16): T. 274,
297, 364, 468, 476, 432, 466, 475, 560, 622, 656, 662, 660,
677, 703, 705.

(h) Retail grocers under class (a) above who testi-
fied that after the advent of the Post and Kellogg prod-
ucts their customers, when ordering the Petitioner’s prod-
uct, called for just ‘‘Raisin-BRAN”’ (20): T. 290, 297,
999, 324, 328, 364, 369, 415, 434, 464, 465, 560, GUO, 605,
606, 619, 665, 675, 692, 694.

(i) Retail grocers who testified that the mark
‘‘Raisin Bran’’? meant Petitioner’s product (31): T. 324,
398, 345, 349, 363, 364, 366, 368, 370, 375, 377, 379, 389,
389, 408, 432, 434, 445, 546, 555, 559, 561, 597, 99S, 601,
666, 666, 688, 692, 702, 705.

Note 5. Wholesale grocer witnesses (37): T 2,
975, 286, 299, 315, 319, 332, 349, 358, 365, 378, 406, 411,

109

419, 444, 445, 454, 462, 470, 507, 533, 539, 553, 592, 594
G09, 614, 627, 640, 647, 659, 678, 685, 700, 707.

(a) Of the above, the following did a joint whole-
sale and retail business (1): T. 56.

(b) Of the above, all but the following knew the
source of origin of Petitioner’s product (3): T. 355, 471,
D384.

(c) The following wholesale grocers testified that
before the advent of the Post and Kellogg competing
products, the term ‘‘Raisin-BRAN’’ meant Petitioner’s
product in the wholesale and retail trade (33): T. 276,
287, 300, 316, 320, 334, 350, 359, 366, 379, 407, 415, 420,
445, 446, 455, 463, 471, 508, 540, 554, 595, 610, 616, 628,
641, 648, 660, 679, 687, 702.

Note 6. Prior to its adoption by the Petitioner in
June, 1925, the term ‘‘Raisin-BRAN’’ had never been ap-
plied to any food product on the American market.

(a) Consumer witnesses who testified that name had
not been applied to any other breakfast food: T. 290,
293, 303, B11, 311, 331, 372, 425, 427, 459, 461, 474, 479,
651.

(b) Retail grocers who so testified: T. 557, 561, 597.

(c) There was no evidence that the name had been
applied to any other food product prior to 1925.

The Trial Court found that prior to April, 1942,
there was no prepared breakfast food product on the
American food market, other than Appellant’s product,
designated as ‘‘Raisin-BRAN’’, or in approximately sim-
ilar fashion (F. 6, T. 106) but the Court refused the
request of the Appellant (Par. I, T. 132), to find that at
the time the Appellant adopted the term ‘Raisin-BRAN”’

110

for use upon its aforesaid product, said term, standing
alone, was not in use as a designating term for any food
product (Par. 1, T. 182), and predicated its refusal upon

the following: ‘‘The eyaetfhice in the case did not nega-

tive the possibiliythat it might have been employed
alone in designating some other type of food. The most
that can be said is that there is no evidence of any such
employment * * *’’ (Par. 1, T. 132). In making this
Finding the Court apparently overlooked the uncontra-
dicted testimony of consumers and retail grocers who
testified positively that prior to April, 1942, they knew
of no food product on the American market bearing the
name ‘‘Raisin-BRAN”’’ other than Appellant’s product
(see Notes 12), k, |, and m, p. 117, infra) or if the Court
did not overlook that testimony, the Court erred in its
Conclusion of Law as to what is necessary to prove a
negative. A negative, from its nature, usually admits of
no more than approximate proof, and evidence which ren-
ders the negative probable is sufficient proof of the nega-
tive in the absence of positive proof to the contrary. 32
C. J. S., See. 1025, p. 1062; Leonard v. St. Joe Lead Co.,
8th C. C. A., 1935, 75 F. 2d 3890; Southern Rwy. Co. v.
Stewart, 8th C. C. A., 1941, 119 F. 2d 85; Majestic Se-
curities Corp v. Collector of Internal Revenue, 8th C. C.
A., 1941, 120 F. 2d 12; Owen v. Carmichael’s Auto Co.,
(Cal., 1931), 2 P. 2d 580.

Note 7. The Petitioner’s attempt to register the
trade-mark under the 1905 Trade Mark Act and its sub-
sequent registration under the 1920 Trade Mark Act did
not preclude the term ‘‘Raisin-BRAN’’ from acquiring a
secondary meaning.

In the Lower Court, the Respondent insisted that
the Petitioner admitted that the term ‘*Raisin-BRAN”’

111

was so descriptive that it could not acquire a secondary
meaning because when the Petitioner first tried to reg-
ister its mark under the Trade Mark Act of 1909, such
registration was denied on April 9, 1926, on the ground
that ‘‘Raisin-BRAN, is merely the commercial name of
applicant’s goods’’, and the applicant did not appeal from
such decision, but shortly thereafter registered the mark
under the Trade Mark Act of 1920 (‘T. 162).

The Trial Court paid no heed to this particular ob-
jection, and it is apparent that the objection was of no
force or effect, for as shown in the case of Armstrong
Paint & Varnish Co. v. Nu-Enamel Corp., 305 U.S. 310,
this Court has held that the registration under the 1920
Act did not preclude the acquisition of a secondary mean-
ing. Surely the fact that the term was used as a com-
mercial name for the product did not preclude the Pe-
titioner from claiming it as a trade-mark nor prevent
the term from thereafter acquiring a secondary meaning
under the method employed by the Petitioner to create
such secondary meaning. At the time that the registration
was sought under the 1905 Trade Mark Act, the question
whether or not the term had aequired a secondary mean-
ing was not at issue, and those proceedings in the Patent
Office were not res judicata of the proceedings here, Pop-
ular Mechanics Co. v. Fawcett Publications, Inc, 1 FL 8.
292, 294; Trappey v. M’Ilhenny Co., 281 F. 23, cert. de-
nied, 43 8. Ct. 94, 260 U.S. 753; Gaidry v. M’Ilhenny Co.,
253 F. 613; Bisceglia Bros. v. Fruit Industries, Ltd., 20
KF. 8S. 564; In Re American Cyanide & Chemical Corp.,
99 F. 2d. 964.

Be Oe colar 2

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by
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fe
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112

Note 8. Petitioner’s trade-mark as used on its

)aisin-

TRADE MARK BRAND NAME
REG. U. S PAT OFF AND STATES

BRAN

TRADE MARK BRAND NAME
OF THIS PRODUCT WHICH 1S

(From Ptfs. Ex. 9)

Note 9. Term ‘‘Raisin Bran’’ as it appears on Re-

spondent’s package:

nas

(From Defs. Ex. 3)

113

Note 10. Newspapers in which General Foods prod-
uct was advertised by retailers as ‘‘Raisin Bran’’ or
‘‘Post’s Raisin Bran’’ with the word ‘‘Post’s’’ small and
inconspicuous:

5-12-42

5-29-49

6-12-42

8-28-42

§-22-42

Reynolds ood Store, Texarkana, Arkansas, ad-
vertised “One Pkg. Post’s Grape-Nut Flakes
and one Pkg. Raisin Bran, both for 12¢.”’ The
“Raisin Bran’? advertised was the General
Foods product (Pts. Ex. 88-P, T. 481).

Lofton’s at Fort Smith, Arkansas, advertised
‘Raisin Bran, pkg. 8¢.7? The ‘Raisin Bran’’
thus adv ertised was the General Foods product
(Ptfs. Ex. 88-Q, T. 481, 482).

Gilchrist’s Food Store, Fort Smith, Arkansas,
advertised ‘‘Post’s Grape-Nut Flakes and pack-
age Raisin Bran, both for 18¢,”’ and Lofton’s
Store, Fort Smith, Arkansas, adv ertised ‘* Raisin
Bran, pkg. 7%¢.’’ The product advertised by
both of these stores as ‘‘Raisin Bran”? by the
General Foods product (Ptfs. Ex. 88-R, T. 485).

Lofton’s Store, Fort Smith, Arkansas, adver-
tised ‘*Raisin Bran pkg. 9¢.’’ Product thus ad-
vertised was General Foods product (Ptfs. Ex.
88-S, T. 482, 485).

Model Food Market, Little Rock, Arkansas, ad-
vertised ‘Raisin Bran,’’ 2 pkgs. 23¢.’? Product
thus advertised was General Foods product
(Ptfs. Ex. 88-T, T. 483, 484).

Strickland’s Super Store, Little Rock, Arkansas,
advertised ‘Raisin Bran, per pkg. 7¢.’? The
product advertised was the General Foods prod-
uct (Pts. Ex. 88-M, T. 477).

Stacy’s Store, Little Rock, Arkansas, advertised
‘‘Post’s Bran Flakes, 10¢ a package and Raisin
Bran free, for 10¢.’? The product advertised
‘Raisin Bran free’? was the General Foods
product (Ptfs. Ex. 88-O, 'T. 480, 481).

5-28-42

7-10-42

7-10-42

7-10-42

7-10-42

7-11-42

114

The E-%Z Self-Service Store, Frederick, Okla-
homa, advertised ‘‘ Raisin Bran, regular 12¢ box,
6.¢?? The product thus advertised was General
Foods product (Ptfs. Ex. 66-E-1, T. 281).

Piggly-Wiggly Stores, Lubbock, Texas, adver-
tised ‘‘Grape-Nut Flakes and Raisin Bran, 11-
oz. pkgs., both for 12¢.’’ The product advertised
as ‘‘Raisin Bran’? was the General Foods prod-
uct (Ptfs. Ex. N-1, T. 284).

Carl’s Cash Grocery, Lubbock, Texas, advertised
‘‘Grape-Nut Flakes and Raisin Bran, 2 pack-
ages 12¢.’’ The product advertised as ‘Raisin
Bran’? was the General Foods product (Pttfs.
Ex. O-1, T. 284).

Ideal Food Market, Pampa, Texas, advertised
‘1 package Raisin Bran, 1 package Grape-Nut
Flakes, 25¢ value, all for 11¢.’’? The product
advertised as ‘‘Raisin Bran’’ was the General
Foods product (Ptfs. Ex. P-1, T. 284).

McCartt Super Market, Pampa, Texas, adver-
tised ‘‘Raisin Bran, 1 box Post’s Grape-Nut
Flakes, free, 10¢.’’ The product advertised as
‘Raisin Bran’? was the General Foods product
(Ptfs. Ex. Q-1, T. 284).

The Furr Food Super Markets, Amarillo, Texas,
advertised ‘‘1 package Raisin Bran, 1 package
Grape-Nut Flakes, 2 for 11¢.’? The product ad-
vertised as ‘‘Raisin Bran’? was the General
Foods product (Ptfs. Ex. R-1, S-1, T. 284).

No Date

593-49

Aug. 742

7-31-42

6-9-42

5-29-42

115

Carl’s Cash Market, Tucumeari, New Mexico,
advertised by handbill ‘‘Grape-Nut Flakes and
Raisin Bran, 2 packages 12¢.’’? Product adver-
tised as ‘‘Raisin Bran’? was the General Foods
product (Ptfs. Ex. T-1, T. 284, 285).

Furr Food Store, Dumas, Texas, advertised
‘Raisin Bran and 1 package Grape-Nut Flakes,
all for 11¢.’? The product advertised as ‘* Raisin
Bran’? was the General Foods product (Ptfs.
Ex. U-1, T. 285). Exs. LL-1 and J-1 show sim-
ilar types of advertising which indicates that
the General Foods product was being advertised
as just ‘‘Raisin Bran.’’

Cireular of Q-P Stores, Houston, Texas, adver-
tised ‘Raisin Bran’? with word ‘‘Post’s’’ in
small letters (Ptfs. Ex. 57, T. 264-265). These
stores operate in numerous towns in Texas.

Market Basket Stores, Houston, Texas, listed
‘‘Raisin Bran, package 11¢”’ with word ‘‘ Post’s”’
in very small letters (Ptfs. Ex. 58, T. 260).

Houston Kash-way Stores, Houston, Texas, ad-
vertised product as ‘Raisin Bran’? in large let-
ters with word ‘‘Post’s’’ in small letters (Ptfs.
Ex. 60, T. 269).

Newspaper advertisement, Ingle Grocery, Cor-
pus Christi, Texas, advertising product as
‘(Raisin Bran’? in large letters with word
‘¢Post’s’”’ in small letters (Ptfs. Ex. 61, T. 269).

Exs. B. C, D, E and F show similar advertise-
ments circulated in New Orleans, La., in which
the General Foods product is advertised as just
‘‘Raisin Bran’’ (T. 417, 418) vide:

Ex. B, circular: ‘‘Grape Nuts and Raisin Bran,
Special both for 15¢.”’

dx. C, handbill: “Grape Nut Flakes and Raisin
Bran both for 12¢.’’

116

6-3-42 Ex. D, circular: ‘‘Buy 1 box Post’s Bran Flakes,
1-Ib. box Raisin Bran—worth 24¢, all for 12¢.”’

61-42 Ex. KE, cireular: ‘‘1 package New Raisin Bran,
2¢ when you buy 1 package Grape Nut Flakes,
10¢.”’

5-30-42 Ex. F, cireular: ‘‘1 box Grape Nut Flakes,
FREE with Raisin Bran, box tH4¢.’’

Note 11. The testimony of witnesses who said they
were not confused or would not be confused: T. 307, 309,
314, 329, 533, 535, 537, 551, 584, 670.

Note 12. Answers to questions as to meaning of term
Raisin Bran.

(a) Answers of consumers and retailers to question,
‘‘What does raisin bran mean to you?”’ T. 274, 309, 321,
327, 352, 360, 363, 365, 369, 372, 374, 476, 545, 548, 549,
550, 554, 556, 560, 583, 585, 589, 593, 598, 603, 604, 619,
622, 625, 630, 632, 634, 635, 638, 643, 654, 656, 663, 668,
689, 692, 695, 698, 700, 711.

(b) Witnesses listed in (2) who gave their evidence
with the Kellogg and General Foods competing products
in mind: T. 274, 360, 476, 545, 549, 554, 556, 560, 585, 989,
593, 604, 615, 622, 625, 630, 632, 634, 635, 638, 643, 656,
663, 668, 689, 692, 695, 700, 711.

(c) Witnesses testified that before advent of Gen-
eral Foods and Kellogg competing products, ‘*Raisin
Bran’’ meant Petitioner’s product: T. $27, 328, 46s, 370,
374, 382, 389, 424, 536, 545, 554, 560, 998, 635, 638, 689,
692.

(d) Witnesses listed in (a) who answered leading
questions: T. 309, 360, 369, 615, 634, 656, 668, 690.

117

(e) Witnesses listed in (a) who had practically no
acquaintance with Petitioner’s product: T. 363, 549, 990,
603, 654.

(f) Witnesses listed in (a) who were asked for dic-
tionary definitions: T. 274, 321, 372, 374, 545, 583, 58d
589, 593, 615, 622, 625, 634, 635, 638, 648, 654, 656, 663,

664, 668, 689, 695, 700, 711.

(g) Consumer and retailer witnesses who answered
that ‘‘raisin bran’’ does not mean a particular producer:

Consumers: T. 353, 546, 556, 651, 638.
Retail Grocers: T. 481, 625
(h) Witnesses listed in (g) whose testimony shows

that before competition they understood ‘Raisin Bran’’
meant the Petitioner’s product:

Consumers: T. 546, 638.

(i) Witnesses listed in (g) who had competing prod-
ucts in mind when testifying:

Consumers: T. 631, 638,

(j) Witnesses who testified that before Respondents
put their competing products on the market, the term
‘raisin bran’’, standing alone, had not been applied to
any food product: T. 288, 292, 304, 311, 331, 332, 459, 461,
474, 479, 557, 561, 596, 631, 645, 658, 690.

(k) Witnesses who testified that before Respondents
put their competing products on the market there was no
product other than Petitioner’s known as ‘‘raisin bran’’:
T. 352, 372, 374, 425, 428-29, 588, 632, 639, 656.

(1) Witnesses who testified that there was no such
thing as the bran of a raisin: T. 587, o8!.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA34806415_2306%3A2. Public record. Not legal advice.