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PECHEUR LOZENGE CO. v. NATIONAL CANDY CO.

December 31, 1940

PECHEUR LOZENGE CO., Inc.,
v.
NATIONAL CANDY CO., Inc.



The opinion of the court was delivered by: WALKER

The facts are:

1. The plaintiff, Pecheur Lozenge Co., Inc. (hereinafter referred to as "Pecheur"), is and at all times hereinafter mentioned, was a corporation organized and existing under the laws of the state of New York and a citizen of said state.

 2. The defendant, National Candy Company Inc. (hereinafter referred to as "National"), is and at all times hereinafter mentioned, was a corporation organized and existing under the laws of the state of New Jersey and a citizen of said state.

 3. The plaintiff has spent money and done many things to advertize its trademark and enhance the value of its good will, both are here sought to be protected and the value of each is in excess of $3,000.

 4. The product of Pecheur since 1916, has been sugar wafers or candy wafers made to simulate coins, each with the diameter of a one cent piece, wrapped at first in waxed paper, later transparent glassine, and more recently, transparent cellulose to form what are known to the trade and to purchasers as candy "Rolls". *fn1" "Pay Roll" is the name that has continuously identified the product since it first appeared in the retail market.

 5. From 1916 to 1934, the labels used to wrap the rolls had the words "Pay Roll" printed thereon in blue and the dollar sign in red. In 1934, *fn2" Label No. 4, *fn3" was conceived and executed with coins simulated thereon. Each simulated coin had a circumference in yellow, a circle of stars in yellow, numeral or numerals and dollar sign in red. The words Pay Roll and the other words thereon were in blue. Labels No. 5 and No. 6 followed, the change being circumference of each coin in red and circle of stars in blue. On March 14, 1936, Label No. 7, *fn4" came into use and with immaterial changes it continues in use as Label No. 8. The simulated coins each have a circumference in red, a background in yellow, the word or words, numeral or numerals and figure within the circumference in red. The words "Pay Roll" and the other words thereon are in blue, the dollar signs in red.

 6. A duplicate of Label No. 7 is attached hereto and made part hereof.

 [See Illustration in Original]

  7. National is successor to Putnam & Brooks, established in 1865, and it first started to make sugar wafers or candy wafers with the diameter of a one cent piece in simulation of coins in 1908, and they were sold loose, a certain number for one cent from 1908 to 1936. In February, 1936, *fn5" National began to package said wafers in the form of a candy roll, *fn6" and it has continued to make said package by wrapping the wafers in transparent glassine labels with coins simulated thereon. Each simulated coin has a circumference in red, a background of yellow and the words and figure within the circumference in red. The words "Cash Roll" and the other words thereon are in red.

 8. A duplicate of said label is attached hereto and made part hereof:

 [See Illustration in Original]

 9. Pecheur first learned of "Cash Roll" on or about October 30, 1937, and eventually this action resulted, when after notice (Letter of November 3, 1937) National denied infringement ...


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