The Creamette Company, a Minnesota Corporation v. Joseph Merlino, a Sole Trader Doing Business as Major Italian Foods Company

The Creamette Company, plaintiff below and appellant here, sought to obtain an injunction and damages for trademark infringement and unfair competition. Relief was denied, and Creamette appeals. The court below had jurisdiction under 15 U.S.C.A. §§ 1114 (1), 1116, 1117, 1121 (the Lanham Trade-Mark Act) and 28 U.S.C. § 1338 , as well as under 28 U.S.C. § 1332 . We have jurisdiction under 28 U.S.C. § 1291 and Rule 54 (b) F.R.Civ.P., 28 U.S.C.A.

From the complaint, the suit appears to be based primarily upon a charge that defendant appellee Merlino was infringing Creamette’s registered trade-mark “Creamettes”, used on macaroni products, by using the unregistered mark “Majorette” on similar products. It is also charged that the use of “Majorette” infringes other marks of Creamette, and that its use in combination with certain words and designs also constitutes unfair competition. However, the court having found against Creamette on all issues, the principal claim here is, to quote from Creamette’s brief, that it owns a “ ‘family’ of trade-marks as applied to macaroni products, and * * * has an indisputable right to the exclusive use of the suffix [“ette” and “ettes” and “et”] on and…