Clapp, Smalley and Schettino. The opinion of the court was delivered by Schettino, J.s.c. (temporarily assigned).
This appeal is taken from a judgment of the Chancery Division of this court dismissing plaintiff's complaint. Plaintiff sued to enjoin alleged unfair competition by the sale and distribution of a plastic catsup dispenser and for an accounting of profit.
Defendant produces, like the plaintiff, a dispenser in a shape resembling a tomato, colored either red and yellow, and adorned by a green leaf and stem on top. The dispenser is a household item, which when its plastic side is squeezed dispenses catsup or mustard through a spout on top. The dispenser's design was created by plaintiff. It has sold over 2,890,000 Squeezits, with gross sales of $1,570,000 since 1952. The appealing tomato shape and color of the dispenser is the feature which is attributed to its wide and successful sale.
Both containers are practically identical in size, shape, color and use but are packaged in display cartons clearly distinguishable. Upon each carton different trade names were stamped, the plaintiff used the descriptive trade name of "Squeez-it" and defendant, the name "E-Z-Flow."
The plaintiff concedes that it does not possess the exclusive right to make or sell tomato catsup or mustard dispensers. But it claims the exclusive right to make such dispensers in the shape of a tomato and to color it red or yellow. It charges that the defendant, by using the same colors and shape, is passing off, or enabling others to pass off, "E-Z-Flow" for "Squeez-it," and that such actions by defendant is unfair competition. Defendant asserts that it has used every reasonable effort to distinguish its product from that of the plaintiff; and contends that it is honestly competing for a part of the dispenser market and that it has the right to sell an article unprotected by patent.
While plaintiff's claim does not pose substantial difficulties, its subject-matter is a field of tort law of relative recent development involving many unsettled or doubtful questions of substantive law. The concept and theory of unfair competition is unclear and may change from one decade to the next. Ellis, Trade Secrets § 9 (1953)
The trend of this developing field is well stated by Judge Goodrich in Q-Tips, Inc., v. Johnson & Johnson , 206 F.2d 144, 145 (C.C.A. 3 1953):
"* * * we are in a field where the tendency of the law 'has been in the direction of enforcing increasingly higher standards of fairness or commercial morality in trade. The tendency still persists.' Restatement, Torts, Vol. III, page 540."
The grounds upon which relief is granted were described in an early New Jersey decision as follows:
"either that the means used are dishonest, or that, by imitation of name or device, there is a tendency to create confusion in the trade, and enable the seller to pass off upon the unwary his goods as those of another, and thereby deceive the purchaser; or that, by false
representation, it is intended to mislead the public, and induce them to accept a spurious article in the place of one they have been accustomed to use." Vitascope Co. v. ...