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Mishawaka Rubber & Woolen Mfg. Co. v. S. S. Kresge Co.

Supreme Court of the United States

April 1, 1942, Argued ; May 4, 1942, Decided

No. 649


 [324]   [*203]  [**1023]  [***1384]    MR. JUSTICE FRANKFURTER delivered [****2]  the opinion of the Court.

The petitioner, which manufactures and sells shoes and rubber heels, employs a trade-mark, registered under the Trade-Mark Act of 1905, 33 Stat. 724, 15 U. S. C. § 81 et seq., consisting of a red circular plug embedded in the center of a heel. The heels were not sold separately, but were attached to shoes made by the petitioner. It has spent considerable sums of money in seeking to gain the  [*204]  favor of the consuming public by promoting the mark as assurance of a desirable product. The respondent sold heels not made by the petitioner but bearing a mark described by the District Court as "a circular plug of red or reddish color so closely resembling that of the plaintiff [petitioner] that it is difficult to distinguish the products sold by the defendant from the plaintiff's products." The heels sold by the respondent were inferior in quality to those made by the petitioner, and "this tended to destroy the good will created by the plaintiff in the manufacture of its superior product." Although there was no evidence that particular purchasers were actually deceived into believing that the heels sold by the respondent were [****3]  manufactured by the petitioner, the District Court found that there was a "reasonable likelihood" that some purchases might have been induced by the purchaser's belief that he was obtaining the petitioner's product. "The ordinary purchaser, having become familiar with the plaintiff's trade-mark, would naturally be led to believe that the heels marketed by the defendant were the product of the plaintiff company." Concluding that the petitioner's mark had thus been infringed, the court enjoined future infringement and also ordered that the respondent account to the petitioner for profits made from sales "to purchasers who were induced to buy because they believed the heels to be those of plaintiff and which sales plaintiff would otherwise have made."

Complaining of this criterion for determining the profits that improperly accrued to the respondent by reason of the infringement, the petitioner appealed to the Circuit Court of Appeals for the Sixth Circuit, which affirmed the decree. 119 F.2d 316. Deeming the matter to present an important question under the Trade-Mark Act, we brought the case here solely to review the provisions of the decree dealing with the measure [****4]  of profits and  [*205]  damages for the infringement found by the two lower  [**1024]  courts. Whether there was such an infringement as to entitle the petitioner to the remedies provided by the federal trade-mark laws is therefore not open here.

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316 U.S. 203 *; 62 S. Ct. 1022 **; 86 L. Ed. 1381 ***; 1942 U.S. LEXIS 1224 ****; 53 U.S.P.Q. (BNA) 323



 CERTIORARI, 314 U.S. 603, to review the affirmance of a decree in a suit to enjoin infringements of a trademark and for an accounting of profits.

Disposition:  119 F.2d 316, reversed.


infringement, heels, profits, trade-mark, decree, purchasers, sales, shoe, symbol, Trade-Mark Act, manufactured, products, damages, belong

Business & Corporate Compliance, Types of Commercial Transactions, Sales of Goods, General Overview, Copyright Law, Damages, Types of Damages, Infringement Profits, Trademark Law, Conveyances, Causes of Action Involving Trademarks, Infringement Actions, Burdens of Proof, Remedies, Profits, Determinations