Fleischmann Distilling Corp. v. Maier Brewing Co.

314 F.2d 149 (9th Cir. 1963)

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Nature of the Case

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Facts

P and its predecessor have blended and sold Scotch whisky under the name 'Black & White' since before the turn of the century, and have marketed the product in the United States under that name for more than 50 years. P registered the name as its trademark for Scotch whisky in the United States. P has been the sole importer of Black & White whisky in the United States since 1948. 'Black & White' Scotch whisky is a widely known Scotch whisky. It is the leader among Scotch whiskies. Its sales have exceeded one hundred million bottles during the tenure of P and more than five hundred thousand cases have been sold in the six-year period between 1951 and 1957. During the six-year period mentioned, P expended more than five million dollars in advertising their Black & White Scotch whisky. D is a brewing company in Los Angeles who brews a low-price beer which it sells under a variety of different labels. P sold beer to Ralphs, a grocery chain store, through a wholesaler under the label Black & White. P was asked to discontinue using the name. A similar notice was sent to Ralphs. These demands were refused and this suit followed. The court found that there is no real competition between the whisky and beer. This lack of real competition rendered it unlikely that there is, or will be, any confusion as to source in the mind of a buyer.' P appealed.