Nature of the Case
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Facts
P suggested to D by letter that its own gelatin product, 'Jell-O,' be named 'Wiggley' or a variation of that word, including 'Mr. Wiggle,' and that the product be directed towards the children's market. Several days later, D sent P an 'Idea Submittal Form' (ISF) which included a form letter and a space for explaining the idea. P used the form and suggested, in essence, that the product 'be packaged & distributed to children under the name 'wig-l-e' (meaning wiggly or wiggley) or 'wiggle-e' or 'wiggle-eee' or 'wigley.'' The idea came to him because his own children did not 'get especially excited about the Name Jell-O, or wish to eat it,' when referred to by that name, 'the kids really took to it fast' when his wife 'called it 'wiggle-y,'' noting that they then '[associated] the name to the 'wiggle-ing' dessert.' P claims he sent two handwritten letters. A letter over the signature of Miss Dunham, acknowledged the submission of the ISF and informed P that it had no interest in promoting his suggestion. Just a few months later, D introduced into the market a Jell-O product which it called 'Mr. Wiggle.' P sued D for misappropriation. D claims it first began work on a children's gelatin product in May 1965 -- three months after P had submitted his suggestion -- in response to a threat by Pillsbury Company to enter the children's market with a product named 'Jiggly.' Those employees of the defendant in charge of the project enlisted the aid of Young & Rubicam which, solely on its initiative, 'came up with the name 'Mr. Wiggle.'' Miss Dunham swore in her deposition that she had had no knowledge of P's idea until late in 1966, shortly before the commencement of his suit. The ideas submitted by the general public were kept in a file by an assistant of hers 'under lock and key'; and that no one from any other department ever asked to research those files. Dunham's signature had been produced on a signature duplicating machine and she had no contact whatsoever with Young & Rubicam and had never discussed the name 'Wiggle' or 'Mr. Wiggle' with anyone from that firm. D submitted depositions of its employees and the employees of its advertising agency, and proof of its prior use of some form of the word 'wiggle' in connection with its endeavor to sell Jell-O to children in June of 1959. It also submitted a copy of a television commercial from 1959 and a newspaper advertisement from 1960 with an Indian 'squaw' puppet and her 'papoose' preparing Jell-O -- the 'top favorite in every American tepee' -- and suggesting to mothers that they '[make] a wigglewam of Jell-O for your tribe tonight!' Both parties moved for summary judgment. They were both denied. D appealed claiming that the idea was not original or novel. The appeals court affirmed and granted D leave to appeal.
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