Applebaum v. Senior

6 Citing cases

  1. Cytanovich Reading Center v. Reading Game

    162 Cal.App.3d 107 (Cal. Ct. App. 1984)   Cited 7 times

    (Italics added.) (1) What cannot be used as marks are words or phrases in common use ( Purity Springs W. Co. v. Redwood Ice Dlvy. (1928) 203 Cal. 286, 291 [ 263 P. 810]; Applebaum v. Senior (1957) 154 Cal.App.2d 371, 374 [ 316 P.2d 410]) or which are descriptive of the goods or services (see Bus. Prof. Code, § 14220, subd. (e)(1)). Any person who adopts and uses a trademark or service mark in California may register the mark with the Secretary of State (Bus.

  2. N. Carolina Dairy Foundation v. Foremost-McKesson

    92 Cal.App.3d 98 (Cal. Ct. App. 1979)   Cited 17 times

    ( Miller Brewing Co. v. G. Heileman Brewing Co., Inc. (7th Cir. 1977) 561 F.2d 75 [cert. den., 434 U.S. 1025 (54 L.Ed.2d 772, 98 S.Ct. 751)]; Dryice Corporation v. Louisiana Dry Ice Corporation (5th Cir. 1932) 54 F.2d 882; Skinner Mfg. Co. v. General Food Sales Co. (D.Nev. 1943) 52 F. Supp. 432; Kellogg Co. v. Nat. Biscuit Co. (1938) 305 U.S. 111 [83 L.Ed. 73, 59 S.Ct. 109]; Ball v. American Trial Lawyers Assn. (1971) 14 Cal.App.3d 289, 302 [ 92 Cal.Rptr. 228]; Applebaum v. Senior (1957) 154 Cal.App.2d 371, 374 [ 316 P.2d 410]; 3 Witkin, Summary of Cal. Law (8th ed. 1973) Personal Property, § 46, pp. 1657-1658; see generally 3 Callmann, The Law of Unfair Competition, Trademarks and Monopolies (3d ed. 1969) §§ 70.1-70.4, pp. 106-112; 1 McCarthy, §§ 11:5, 12:2, pp. 352-353, 407; 74 Am.Jur.2d, Trademarks and Tradenames, §§ 40, 46-52, pp. 727, 730-734; 47 Cal.Jur.2d, Trademarks, §§ 5-6, pp. 717-719; cf. Bus. Prof. Code, § 14220, subd. (e)(1), and 15 U.S.C. § 1052(e)(1).)

  3. Hair v. McGuire

    188 Cal.App.2d 348 (Cal. Ct. App. 1961)   Cited 13 times
    In Hair v. McGuire, 188 Cal. App. 2d 348, 10 Cal. Rptr. 414 (1961), three years of continuous use of a mark was sufficient to uphold a finding of secondary meaning; however, in Bank of Texas, 741 F.2d at 788, nine years of exclusive use was insufficient where the court noted that "[o]ther evidence must be considered to determine if a secondary meaning was acquired during a particular time span."

    [8] Whether words and terms used by an original appropriator have acquired a secondary meaning thereby ordinarily is a question of fact ( Jackson v. Universal International Pictures, Inc., supra, 36 Cal.2d 116, 121; Family Record Plan, Inc. v. Mitchell, supra, 172 Cal.App.2d 235, 243; Johnston v. 20th Century-Fox Film Corp., 82 Cal.App.2d 796, 813 [ 187 P.2d 474]); as is also the question whether their subsequent use is likely to deceive or confuse the public. ( Schwartz v. Slenderella Systems of Calif., Inc., supra, 43 Cal.2d 107, 112; Family Record Plan, Inc. v. Mitchell, supra, 172 Cal.App.2d 235, 245; Applebaum v. Senior, 154 Cal.App.2d 371, 375 [ 316 P.2d 410]; MacSweeney Enterprises, Inc. v. Tarantino, supra, 106 Cal.App.2d 504, 515; Pohl v. Anderson, supra, 13 Cal.App.2d 241, 242.) [1b] It is apparent that an application of the foregoing rules to the findings of the trial court, as heretofore noted, supports the judgment enjoining the defendants from using the business name "Credit Bureau of Palm Springs."

  4. Family Record Plan, Inc. v. Mitchell

    172 Cal.App.2d 235 (Cal. Ct. App. 1959)   Cited 36 times
    Requiring circumstances "amounting to abandonment" of rights in the mark

    Prof. Code, § 14402). Respondent submits that the parties' names represent a combination of ordinary generic words constituting a trade name, as distinguished from a technical trade mark, within the meaning of section 14400 Appellants contend, however, that each name or title is descriptive of the type of business in which the parties engaged, that their use of the identifying phrase antedated that of the respondent and furthermore, the words being merely descriptive are not subject to exclusive appropriation ( Applebaum v. Senior, 154 Cal.App.2d 371 [ 316 P.2d 410]). [6] But, as the Applebaum decision points out, generic or descriptive words can acquire a secondary meaning, citing Academy of Motion Picture Arts Sciences v. Benson, 15 Cal.2d 685, 688-690 [ 104 P.2d 650], and H. Moffat Co. v. Koftinow, 104 Cal.App.2d 560, 564, 565 [ 232 P.2d 15]. Strikingly similar is Rosenthal v. Brasley-Krieger Shoe Co., 19 Cal.App.2d 257 [ 64 P.2d 1109], in which the court rejected the claim that the word "Family" was generic and therefore incapable of being appropriated for use in connection with other words as a trade name. In the case at bar respondent maintained, and the court impliedly found, that a secondary meaning had attached to its name; accordingly, if there is substantial evidence to support that finding, appellants' contention must fail.

  5. Marsalli's Coffee v. Blue Ribbon Prod. Co.

    159 Cal.App.2d 357 (Cal. Ct. App. 1958)   Cited 5 times

    [2] The approach to the problems involved must therefore be according to the rule as stated in Berniker v. Berniker, 30 Cal.2d 439, 444 [ 182 P.2d 557], that "an appellate court (1) will review the evidence in the light most favorable to the respondent; (2) will not weigh the evidence; (3) will indulge all intendments and reasonable inferences which favor sustaining the finding of the trier of fact; and (4) will not disturb the finding of the trier of fact if there is substantial evidence in the record in support thereof." [3] Appellants claim there is no distinction between this case and Applebaum v. Senior, 154 Cal.App.2d 371 [ 316 P.2d 410] (decided by this court in October 1957) and that "Inasmuch as your opinion in Applebaum, supra, notes there was no evidentiary conflict, your decision in that case should be applied — without reservation or distinction — to the present one, regardless of the injunction having been denied by the trial court in one instance and granted in the other." The law of the two cases being the same, the results should be alike unless the facts be different.

  6. Sarkes Tarzian, Inc. v. Audio Devices, Inc.

    166 F. Supp. 250 (S.D. Cal. 1958)   Cited 47 times
    Applying California Law

    California Civil Code, § 3369(3). Wood v. Peffer, 1942, 55 Cal.App.2d 116, 123-124, 130 P.2d 220; McCord v. Plotnick, 1951, 108 Cal.App.2d 392, 395, 239 P.2d 32; Schwartz v. Slenderella Systems, 1954, 43 Cal.2d 107, 111, 271 P.2d 857; D. W. Food Corp. v. Graham, 1955, 134 Cal.App.2d 668, 675-676, 286 P.2d 77; Applebaum v. Senior, 1957, 154 Cal.App.2d 371, 375, 316 P.2d 410; National Van Lines v. Dean, supra Note 7, 237 F.2d at page 691. Unfair competition, under the law of California, may arise from unauthorized disclosure of secret practices.