ESTATE STOVE CO. v. GRAY & DUDLEY CO.

ESTATE STOVE CO. v. GRAY & DUDLEY CO. No. 5236. Circuit Court of Appeals, Sixth Circuit. June 9, 1931. F. M. Bass, of Nashville, Tenn. (Greer Marechal, of Dayton, Ohio, Fyke Farmer and Bass, Berry & Sims, all of Nashville, Tenn., and Drury W. Cooper, of New York City, on the brief), for appellant. K. T. McConnico and C. P. Hatcher, both of Nashville, Tenn. (Pitts, McConnico & Hatcher, of Nashville, Tenn., on the brief), for appellee. Before DENISON, MACK, and MOOR-MAN, Circuit Judges. [MAJORITY — PER CURIAM.] PER CURIAM. Our opinion [41F.(2d) 462] erroneously assumed that the plaintiff (appellant) had characterized its product by the advertising catch word or “slogan,” “No, this is not a phonograph,” and thereupon held that defendant’s “No, this not a victrola,” in connection with a closely similar picture, tended toward deception, to an unpermissible degree. The fact is that the plaintiff’s advertising slogan was “Looks like a phonograph but is a furnace,” in variant forms; and in many ways plaintiff’s advertising emphasized the idea that the “Heatrola” looked like a phonograph, but really was not. In a broad way, as to the public impression produced, there is not much substantial difference between the fact and our erroneous assumption ; but defendant had a right to make this style of heater, and to use as an advertising text its resemblance to a phonograph; and, lacking that specific and unpermissible appropriation which we mistakenly found, defendant’s conduct cannot be made the basis of legal condemnation. Our former decision must be vacated, *,nd the decree below affirmed.