CLIFTON MFG. CO. v. CRAWFORD-AUSTIN MFG. CO.

CLIFTON MFG. CO. v. CRAWFORD-AUSTIN MFG. CO. Circuit Court of Appeals, Fifth Circuit. February 4, 1929. No. 5364. Nat Harris, of Waco, Tex., for appellant. W. W. Naman, of Waco, Tex. (Spell, Naman & Penland, of Waco, Tex., on the brief), for appellee. Before WALKER, BRYAN, and FOSTER, Circuit Judges. [MAJORITY — PER CURIAM.] PER CURIAM. This is an appeal from a temporary injunction issued in a suit by appellee to enjoin the infringement of its registered trade-mark. The parties were competitors in the manufacture and sale of tents, tarpaulins, and wagon covers. Appellee, in order that the purchasing public might identify its goods, adopted and registered as a trade-mark the word “Dux-Bak,” immediately below which was printed, first the figure and side view of a duck, and then the words “Waterproofed and Mildewproofod.” Appellee also adopted a russet brown color to distinguish its product from tho product of its competitors in business. Appellants made use of the word “REX-ALL,” underneath which was placed the figure of a crown and the words “Mildew-proofed and Waterproofed.” They also adopted for their product the distinctive russet brown color. It was shown by the evidence that these two marks when stenciled on articles intended for sale bore such similarity in appearance as that an ordinary purchaser was liable to be deceived, and to accept the product of appellants for that of appellee. Appellants at first used the word “Dri-Duk,” but were enjoined by appellee from doing so, and after that they began to use the mark which they were restrained from using in the present suit. It therefore appears quite conclusively that „ it was the intention of appellant to use a mark so similar to tho trade-mark of appellee as to deceive the purchasing public, but with enough difference in appearance to escape the charge of infringement. Wo have held that infringement was shown in the very similar cases of Vick Medicine Co. v. Vick Chemical Co., 11 F. (2d) 33, and Hydraulic Press Brick Co. v. Stevens, 15 F.(2d) 312. Upon the reasoning of those cases, and the authorities therein cited, the order appealed from is affirmed.