Creamette Company v. Joseph Merlino, D/B/A Major Italian Foods Company

The appellant, plaintiff below, brought an action against the appellee claiming trade mark infringement and unfair competition on the part of the defendant who, like the plaintiff, was a manufacturer of macaroni products. Injunctive relief was sought. This relief was denied in part because of the trial court’s finding that because of the packaging of defendant’s products in certain bags of certain colors, there was a distinct dissimilarity between defendant’s product and that of the plaintiff which prevented the probability of confusion on the part of purchasers, and called for holding that defendant was not chargeable with unfair competition.

The appellant also asks us to permit the record here to be supplemented by a tendered showing that in consequence of a consent judgment entered in a similar action brought by another plaintiff against the defendant herein in the same district court on the 29th day of December, 1960, which was subsequent to the judgment in the district court in this case, and upon the very day upon which appeal was taken herein to this court, provision was made for the defendant thereafter to market its product in a differently colored package than that…