Opinion
No. 5236.
June 9, 1931.
Appeal from the District Court of the United States for the Middle District of Tennessee; John J. Gore, Judge.
On motion for rehearing.
Former decision, reported in 41 F.2d 462, vacated, and decree below affirmed.
F.M. Bass, of Nashville, Tenn. (Greer Marechal, of Dayton, Ohio, Fyke Farmer and Bass, Berry Sims, all of Nashville, Tenn., and Drury W. Cooper, of New York City, on the brief), for appellant.
K.T. McConnico and C.P. Hatcher, both of Nashville, Tenn. (Pitts, McConnico Hatcher, of Nashville, Tenn., on the brief), for appellee.
Before DENISON, MACK, and MOORMAN, Circuit Judges.
Our opinion [ 41 F.2d 462] erroneously assumed that the plaintiff (appellant) had characterized its product by the advertising catch word or "slogan," "No, this is not a phonograph," and thereupon held that defendant's "No, this not a victrola," in connection with a closely similar picture, tended toward deception, to an unpermissible degree. The fact is that the plaintiff's advertising slogan was "Looks like a phonograph but is a furnace," in variant forms; and in many ways plaintiff's advertising emphasized the idea that the "Heatrola" looked like a phonograph, but really was not. In a broad way, as to the public impression produced, there is not much substantial difference between the fact and our erroneous assumption; but defendant had a right to make this style of heater, and to use as an advertising text its resemblance to a phonograph; and, lacking that specific and unpermissible appropriation which we mistakenly found, defendant's conduct cannot be made the basis of legal condemnation.
Our former decision must be vacated, and the decree below affirmed.