Foremost-McKesson

Defendants, Foremost-McKesson, Inc. and Weyerhaeuser Company, appeal from an order granting a preliminary injunction in favor of plaintiffs, North Carolina Dairy Foundation, Inc. (Foundation), G.P. Gundlach & Company, and Knudsen Corporation, enjoining defendants from infringing upon plaintiffs' trademark "Sweet Acidophilus" (hereafter "SA") or engaging in any domestic marketing activities using such trademark or any colorable imitation. Defendants contend that the trial court's findings that the term is a protectable trademark through acquisition of a secondary meaning is not supported by law or the evidence. Our view of the record in light of established principles impels a contrary conclusion requiring affirmance of the challenged order.

Plaintiffs filed a complaint for trademark infringement and unfair competition and false and misleading advertising alleging in substance that: plaintiff Foundation, a nonprofit foreign corporation, developed and perfected a new strain of lactobacillus acidophilus (LBA), a fermenting bacteria used in milk products to aid digestion. The new culture and processing technique eliminates the sour-taste effect caused by the…