Rosa Continente, D/B/A G. Continente v. John A. Continente

Rosa Continente, d/b/a G. Continente, Drought this action against John A. Continente for alleged trademark infringement and unfair competition. Plaintiff sought injunctive relief and an accounting of profits and damages. Defendant denied that he had infringed plaintiff’s trademark or competed unfairly and counterclaimed for cancellation of plaintiff’s registered trademark as invalid.

Plaintiff’s motion for a preliminary injunction was denied by District Judge Stanley A. Weigel. The case was tried before District Judge George B. Harris sitting without a jury. Judgment was entered dismissing both plaintiff’s claim and defendant’s counterclaim. Only plaintiff, Rosa Continente, appeals.

The basic theory of plaintiff’s case, predicated on section 32(1) (a) of the Lanham Act (Act), 60 Stat. 437 (1946), as amended, 15 U.S.C. § 1114 (1) (a) (1964), is that, in selling and distributing juice grapes, defendant uses a colorable imitation of plaintiff’s registered mark for juice grapes, which is likely to cause confusion or to cause mistake, or to deceive. However, the district court held, in effect, that in view of the differences between plaintiff’s and defendant’s marks, and the…