Defendant further contends that no one has the exclusive right to put out a candy "roll" or to monopolize the word "roll", that it has a right to use a wrapper (label) of the type employed by both Pecheur and National and that one should not be permitted to monopolize the simulation of a coin or coins or a particular color or colors.
It begs the question to argue that National is within its legal rights in respect to each individual act here involved. Of course, the defendant has a right to use the word "roll" and to package its product in the form of a candy roll. It has the right to put out its candy in the same size wafer, form and package. However, it does not have the right to market its product in such manner as to cause the public to mistake it for the product of Pecheur.
While "Pay Roll" and "Cash Roll" are not synonymous, there is nevertheless a similarity in the significance of both expressions. Both connote money, and when to both expressions are added wrappers (labels) on which coins have been simulated, the resemblance is heightened.
The arrangement of the coins on National's package is remarkably similar to the arrangement of coins on Pecheur's package. It is more than a coincidence
and even though differences as well as similarities are apparent, when the packages are compared side by side, this is not the test.
In all cases of this kind the consumer is rarely, if ever, afforded an opportunity to make a side by side comparison. He must rely upon his memory.
"The person to be considered is the incautious purchaser".
In this case that incautious purchaser is usually a child and the English courts have given consideration to the fact that children are the purchasers of products such as gum and candy.
The law is not made for the protection of experts, but is for the public -- that vast multitude, which includes the ignorant, the unthinking and the credulous who, in making purchases, do not stop to analyze, but are governed by appearance and general impressions.
It is the casual or ordinary purchaser who must be protected and as to him the test is general appearance.
Truth as a defense on the grounds that defendant's wafers are in the form of coins and when packed form a "Cash Roll" is insufficient. If the words "Cash Roll" described literally a roll of cash it would be telling the literal truth. Here, however, such is not the case. Both Pecheur in its use of "Pay Roll" and National in its use of "Cash Roll" are employing their respective designations in a figurative sense. Conceding for the moment that the situation is otherwise before absolving it on the ground that it was merely telling the truth, equity would first ascertain from the defendant's acts whether or not it intended to deceive the prospective purchasers of its products. In this type of case literal or formal truth is not enough. The question is: What impression will be made on the purchaser?
We also have in this matter, shall we say; a defendant who is careful always to sell its goods as its own, but who puts them up in a style of package so similar to that used by one of its competitors, earlier in the market, that unscrupulous dealers, who purchase from the manufacturer or jobbers in order to sell at retail to consumers are enabled to delude numerous of such retail purchasers by giving them the goods of the defendant as those of the plaintiff. It seems apparent this is unfair competition, both on reason and authority.
Before we close, brief reference should be made to an emissary of the plaintiff, employed to make a certain purchase and although he asked for "Pay Roll" he was given "Cash Roll". The defendant dismisses this incident in its brief with the statement: "The boy made no objection when handed 'Cash Roll'. He wasn't deceived." It is immaterial whether or not he was deceived. The sale disclosed the dealers' intent and purpose just the same as if it had been made to one who was deceived,
and the argument that National is not responsible for the conduct of an independent jobber or retailer is answered by saying the manufacturer is liable when he knowingly or unknowingly puts into the hands of the jobber or retail dealer the means of deceiving the ultimate purchasers.
But even if we were to hold there is no evidence of confusion, when injury to the plaintiff's business is threatened or imminent, though no person is shown to have been deceived, a court is authorized to intervene to prevent its probable occurrence. The originator of a brand or trademark is not required to wait until the wrongful use has been continued for such a time as to cause substantial pecuniary loss,
or to put it another way, the probability of confusion and deception is sufficient to justify the aid of equity.
Conclusions of Law.
National's use of the designation "Cash Roll" is an infringement of Pecheur's designation "Pay Roll".
National's package is deceptively similar to Pecheur's package and its use thereof is likely to cause confusion of the purchasing public and amounts to unfair competition.
Judgment is directed in favor of Pecheur Lozenge Co., Inc., and against National Candy Company, Inc., on the cross-claim of National Candy Company, Inc., and in favor of Pecheur Lozenge Co., Inc., and against National Candy Company, Inc., on the complaint, and National Candy Company, Inc., shall account for and pay over to Pecheur Lozenge Co., Inc., such gains and profits as have accrued or have arisen or have been earned or received by National Candy Company, Inc., and all such gains and profits as would have accrued to Pecheur Lozenge Co., Inc., but for National Candy Company, Inc., together with costs and disbursements.