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The purpose of a trademark is to identify the business in connection with which it is used and accordingly it will be protected only when used in connection with a business, for trademarks and the right to their exclusive use are property rights, in the sense that the right to one's trade, and the good will that follows from it, free from unwarranted interference from others is a property right. The trademark is the instrumentality by which this property right is protected and the right grows out of its use in trade not merely out of its adoption.
Coca-Cola Co. was engaged and has been for many years in the manufacture of a soft drink syrup under the trademark "Coca-Cola". A considerable portion of the public abbreviate the trademark to "koke (coke)," and call for it as "koke (coke)", so much so that when offered as a soft drink "Koke (coke)" meant "Coca-Cola". Defendant Busch adopted a name to be used on a soft drink the words "Koke-Up" and have caused the same to be copyrighted in the United States Patent Office. Busch threatened to manufacture, advertise, offer for sale and sell a soft drink, using the name "Koke-Up". Coca-Cola alleged that unless enjoined by the court, Busch will carry out their threat and put on the market a soft drink named "Koke-Up". Further, these threatened acts would constitute unfair competition, and that the application of the word "koke" to a soft drink is a representation that it is "Coca-Cola".
Does the manufacturing, advertisement and sale of Busch’s infringe on Coca-Cola Co.’s trademark?
In the instant case there can be no question of the fact that Coca-Cola had established by a preponderance of evidence that the word coke was used solely in designation of the plaintiff's product, as the record will show that almost every witness so testified. Unlike in Berghoff Brewing Ass'n v. Popel-Giller Co., Inc., 50 App.D.C. 364, 273 F. 328, 329, wherein the beer’s name was occasionally abbreviated, there was no such casual or occasional use in the instant case, but the record disclosed that "Coca-Cola" is almost generally designated as "coke" and that it has been so designated for at least ten years. Busch was found to have observed the name of "Coca-Cola," realized the value of the reputation and good will which Coca-Cola Co. had built up, and admittedly chose the name "Koke-Up" in order to take advantage of the reputation of Coca-Cola’s product. The abbreviation of the trademark which the public has used and adopted as designating the product of Coca-Cola was equally as much to be protected as the trademark itself. While the name of Busch’s product was "Koke-Up", it was not to be doubted from the evidence in the case that "Koke” was the dominant word which was attempted to be impressed upon the public, since the word "Koke" on the label of the bottle of the product is much larger in size than the other lettering.