The Warner Brothers Company v. Jantzen, Inc.

249 F.2d 353, 115 U.S.P.Q. (BNA) 258, 1957 U.S. App. LEXIS 5425

• Court: Court of Appeals for the Second Circuit
• Decided: November 12, 1957
• Docket: 42, Docket 24567
• Status: Published

Opinions

PER CURIAM.

The plaintiff asks too much in seeking a private monopoly in the common word “allure” as applied to certain articles of feminine adornment and apparel. As the court found on competent evidence, this word or coined words derived therefrom “have, for a long period of years, been utilized as advertising for various types of feminine accoutrements such as girdles, bust pads, hosiery, swim suits, coats, sweaters, dresses, skirts, undergarments and the like, by both the de-

fendant and other manufacturers.” 150 F.Supp. 531, 533. Plaintiff relies on a trade-mark registered in 1932-33, but even then it betrayed some weakness in finding it necessary to embellish the common word to contrive the more fanciful “A’Lure” as the mark for its brassieres. But in so crowded a field of competitive advertising as that for the trade in women’s goods, where rival claims are pressed continuously without let or pause over the air and through the printed page, it is not conceivable that consumers lack awareness of the existence of the trade rivalry involved. Nor, we apprehend, are there buyers still so naive as to regard the quite differing “A’Lure” and “Curvallure” brassieres as inevitably the product of a single manufacturer, even without the added factor found that defendant did not use its coined word alone, but always joined it with its own widely known trade-mark consisting of the name “Jantzen” and a representation of a diving girl. Insistent American advertising, whatever its faults, has surely induced a certain degree of sophistication and wariness in us all. Accordingly we agree with Judge Cashin’s conclusion of noninfringement and accept his convincing opinion, D.C.S.D.N.Y., 150 F.Supp. 531, 533-534, as our own.

Affirmed.