Home/Ninth Circuit/The Creamette Company, a Minnesota Corporation v. Joseph Merlino, a Sole Trader Doing Business as Major Italian Foods Company

The Creamette Company, a Minnesota Corporation v. Joseph Merlino, a Sole Trader Doing Business as Major Italian Foods Company

299 F.2d 55, 132 U.S.P.Q. (BNA) 381, 1962 U.S. App. LEXIS 6072
Court of Appeals for the Ninth Circuit·Decided January 29, 1962·No. 17262_1·Published·Cited by 3 cases

Opinion

DUNIWAY, Circuit Judge.

The Creamette Company, plaintiff below and appellant here, sought to obtain an injunction and damages for trademark infringement and unfair competition. Relief was denied, and Creamette appeals. The court below had jurisdiction under 15 U.S.C.A. §§ 1114(1), 1116, 1117, 1121 (the Lanham Trade-Mark Act) and 28 U.S.C. § 1338, as well as under 28 U.S.C. § 1332. We have jurisdiction under 28 U.S.C. § 1291 and Rule 54 (b) F.R.Civ.P., 28 U.S.C.A. 1

From the complaint, the suit appears to be based primarily upon a charge that defendant appellee Merlino was infringing Creamette’s registered trade-mark “Creamettes”, used on macaroni products, by using the unregistered mark “Majorette” on similar products. It is also charged that the use of “Majorette” infringes other marks of Creamette, and that its use in combination with certain words and designs also constitutes unfair competition. However, the court having found against Creamette on all issues, the principal claim here is, to quote from Creamette’s brief, that it owns a “ ‘family’ of trade-marks as applied to macaroni products, and * * * has an indisputable right to the exclusive use of the suffix [“ette” and “ettes” and “et”] on and in connection with macaroni products.”

Creamette’s business is principally in Minnesota (where it has its headquarters), Michigan, Wisconsin, the Dakotas and eastern Montana, (the “home” territory) with a smaller volume in several other states. Its business in Washington, Oregon, Idaho, California and Alaska is substantially smaller. In Washington, in 1959, its business was $20,000, having declined from a high point of $34,000 in 1954.

Merlino manufactures and sells macaroni products in Washington and adjoining states — Oregon, Alaska, California and, to a small extent, Idaho and Montana —under the unregistered name “Majorette”. Its sales in this area are much larger than Creamette’s.

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The Creamette Company, a Minnesota Corporation v. Joseph Merlino, a Sole Trader Doing Business as Major Italian Foods Company, 299 F.2d 55, 132 U.S.P.Q. (BNA) 381, 1962 U.S. App. LEXIS 6072 (9th Cir. 1962).

299 F.2d 55 (The Creamette Company, a Minnesota Corporation v. Joseph Merlino, a Sole Trader Doing Business as Major Italian Foods Company) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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