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37 Trademark Rep. 135 (1947)
The Barbasol Company v. Jacobs, Doing Business as Eaton Laboratories

handle is hein.journals/thetmr37 and id is 183 raw text is: PART II THE BARBASOL COMPANY v. JACOBS, DOING BUSINESS AS EATON LABORATORIES Circuit Court of Appeals, Seventh Circuit February 28, 1947 TRADE-MARKS-STATUTORY INFRINGEMENT. It is important to keep in mind that the instant cause of action is solely for statutory trade-mark infringement, unfettered by any charge of unfair competition and that the mark in suit is for a design. Kind, size or share of the container upon which such design is employed is immaterial. It is important that goods of the parties are of the same descriptive quality. TRADE-MARKS-EFFECT OF REGISTRATION. Registration of a trade-mark raises a strong presumption of its validity. CERTIORARI TO THE SUPREME COURT-VALIDITY OF MARK. In trade-mark infringement case the Supreme Court allower certiorari solely on the question of the measure of damages. While it did not consider validity of the mark, the fact that it took the case and announced rule for measurement of damages is indication that the Court considered the mark valid. TRADE-MARKS--GENERAL PRINCIPLES. The essential purpose of a trade-mark is to identify the goods on which it is used and to distinguish such goods from those manufactured and gold by others. TRADE-MARKS--CoLoR-DESCRIPTIVE. Parallel diagonal blue, white and red stripes forming a border for blue rectangular panel form is a valid trade-mark. Striped barber pole is not descriptive of barber shops. It is not descriptive of shaving cream, brushes, razors, combs and other goods and services usually found in barber shops. UNFAIR COMPETITION-INFRINGEMENT. In statutory trade-mark infringement cases only likelihood of confusion need be shown. Plaintiff need not prove actual confusion. A different rule applies where unfair competition is alleged. APPEALS TO CIRCUIT COURTS OF APPEAL. Appellate court reverses judgment in instant suit declining to follow own decision in prior case. New trial is granted since defendant-appellee may have been misled by reliance upon prior decision and not have offered evidence upon specific point. Appeal from District Court for Northern District of Illinois, La Buy, D. J. Action by The Barbasol Company against Melvin H. Jacobs, doing business as Eaton Laboratories, for trade-mark infringement. From judgment dismissing complaint, plaintiff appeals. Reversed. Karl Pohl, New York, N. Y., and Edward S. Rogers and William T. Woodson, both of Chicago, Ill., for plaintiff-appellant. Maurice S. Cayne, Chicago, Ill., for defendant-appellee. Before SPARKS, MAJOR and KERNER, Circuit Judges. 37 T.-M. REP. BARBASOL v. JACOBS

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