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Nonexclusive trade-names are public property in their primary sense, but they may in their secondary sense come to be understood as indicating the goods or business of a particular trader. Such trade-names are acquired by adoption and user, and belong to the one who first used them and gave them value in a specific line of business. It is true that the name of a person may become so associated with his goods or business that another person of the same or a similar name engaging in the same business will not be allowed to use even his own name, without affirmatively distinguishing his goods or business. The secondary meaning of a name, has no legal significance, unless the two persons make or deal in the same kind of goods.
Borden’s Condensed Milk filed an infringement action and alleged that Borden Ice Cream Co. infringed its trademark by use of its trade name in a company which manufactured a product that Borden’s Condensed Milk did not manufacture. The district court found that Borden Ice Cream infringed on Borden’s Condensed Milk’s trademark.
Was there copyright infringement in Borden’s Condensed Milk’s use of Borden?
The name "Borden," until Borden’s Condensed Milk came into the field, never had been associated with commercial ice cream. By making commercial ice cream Borden Ice Cream, do not come into competition with Borden’s Condensed Milk. In the absence of competition, the old company cannot assert the rights accruing from what has been designated as the secondary meaning of the word "Borden." The phrase "unfair competition" presupposes competition of some sort. In the absence of competition the doctrine cannot be invoked.