McGeehan, Jayne and Goldmann. The opinion of the court was delivered by Goldmann, J.A.D.
[20 NJSuper Page 328] Plaintiff seeks to restrain defendants from unfairly competing with it in the manufacture and
sale of plastic ukeleles. It maintains that defendants' "Flamingo" ukelele so closely resembles its "Islander" in shape, design, color, price and packaging as "to create a likelihood that the ordinary buyer will mistake defendants' ukelele for the plaintiff's * * * and buy the defendants' ukelele when seeking to buy the plaintiff's ukelele in the belief that he is buying the plaintiff's ukelele." Defendants, in turn, maintain that for plaintiff to prevail it must prove that the "Islander" acquired a secondary meaning in the ukelele market.
These are the issues framed by the pretrial order and contested in the trial of the cause. Infringement of trade-mark or trade name is not here involved. Nor does this action implicate the question of "palming off" or "passing off" -- "fraudulent marketing," as the Restatement of the Law of Torts (1938), vol. 3, § 711, p. 542, denotes it -- of defendants' ukelele as plaintiff's product. In fact, plaintiff expressly disavows that "palming off" is an issue; its reply brief states that its claim "does not involve any element of actual intent or any attempt on respondents' part to sell their goods as those of appellant."
The trial court denied plaintiff's initial application for an injunction pendente lite and after full hearing denied its demand for a permanent injunction and an accounting. 14 N.J. Super. 450 (Ch. Div. 1951). It found, among other things not here pertinent, that plaintiff's "Islander" plastic ukelele, although a pioneer in the field, had not been in the market "a sufficient length of time and with such a degree of success as to acquire secondary meaning." We agree.
Plaintiff's inspiration to produce a plastic ukelele of standard size came from a sudden boom in the sale of the conventional wooden ukelele which began on the west coast early in 1949 and spread across the nation. The boom was largely due to Arthur Godfrey, a well-known radio and television performer, who played a ukelele on his programs.
Mario Maccafferi, president of the plaintiff corporation, conceived the idea of making a plastic ukelele in April, 1949.
He developed the "Islander" design after studyng several different wooden ukeleles. Plaintiff went into regular production in January 1950, but produced only 29 ukeleles that month. It made 1,188 in February, 18,900 in March, 35,706 in April, 51,512 in May, and 29,391 in June when defendants' plastic model appeared -- a total up to that time of 136,726. Production for July was 26,159. This action was instituted August 7, 1950.
The history of defendants' "Flamingo" plastic ukelele is this: Christian Kratt, president of defendant Chris-Kratt Instrument Co., Inc., first thought of the possibility of making a plastic ukelele in March 1949. While on a Canadian trip in July 1949 he saw and purchased a toy plastic ukelele, and it was then he realized that a standard model could also be made of plastic. However, he did not act on the idea until October 1949, after he had returned from a business trip to Europe.
Meanwhile an employee of defendant Park Plastics Co., Inc., after seeing Godfrey on a television show in early October, suggested to its president Arthur Lange the idea of making a plastic ukelele. Some days later Lange met Kratt and asked what he thought of the proposal. Kratt told him that he, too, had been thinking of a standard-size plastic ukelele. He gave Lange the toy ukelele he had bought in Canada and a regular wooden one to study. Shortly thereafter Lange determined that a standard model in plastic was feasible and could compete in the musical instrument market against the conventional ukelele. Preliminary sketches were made and then, from January through early March 1950, detailed drawings of parts and dies were prepared. Work on the steel mold had begun as early as January.
Defendants' final model was a composite of different ukeleles that had served as models, among them several wooden ones, the plastic "Islander" and another plastic ukelele, the "Fin-Der." Production of defendants' "Flamingo" began in June 1950.
Plaintiff instituted its advertising campaign for the "Islander" ukelele in January 1950, with striking advertisements in the trade papers. Company and distributor advertising continued in these publications and in newspapers down to the time this action was instituted. There were also the usual publicity releases and display pieces. In March 1950, Godfrey began to mention and play the "Islander" on some of his programs, and this continued to June 1950. He also mentioned other makes of ukeleles, among them, subsequently, the "Flamingo."
To the uncritical eye both the "Islander" and the "Flamingo" have the same general appearance. But there are differences in details. For example, the "Flamingo" has only four parts and the "Islander" nine, exclusive of plastic strings and metal pegs. The dimensions differ in significant respects, thus establishing the fact that defendants' ukelele could not, as charged by plaintiff, have been moulded from its "Islander" since normal tolerances and shrinkage would not account for the observed differences.
These differences would not, however, have much significance in an ordinary case of unfair competition involving "passing off," because there the test to be applied would be not the careful scrutiny of the discriminating purchaser, but the likely observation of the casual buyer. The resemblances between the two ukeleles would be an influential factor if the issue of secondary meaning were resolved in favor of the plaintiff. It could then urge, as it does here at some length, that there is a fatal similarity between defendants' "Flamingo" and its own "Islander" -- in dimensions, coloration of corresponding parts, retail price, and the size, shape and design composition of the respective ukelele containers.
In this regard it should be observed in passing that defendants' ukelele has the name "Flamingo" in large letters, as well as a Hawaiian scene, stamped on the head of the instrument, thus identifying it for every buyer. Plaintiff's ukelele has "Islander" slanted across the head, ...