The Volokh Conspiracy - Lies, Damn Lies, and Grape Nuts:

Ann Althouse, guest-blogging at InstaPundit posts about a failed consumer fraud lawsuit about "crunchberries": Turns out there are no actual berries called "crunchberries" in Cap'n Crunch, but that's not a problem, the judge ruled. (Who knew?)

But she also asks, "AND: Did anyone ever sue Grape-Nuts?," which is a great excuse to mention Nashville Syrup Co. v. Coca Cola Co., 215 F. 527 (6th Cir. 1914):

Since [1892], [the Coca Cola Co.] has continuously manufactured and sold a syrup under the name, 'Coca Cola'; and, used as a basis for carbonated drinks, the syrup, under this name, has had a large sale in all parts of the country.... Plaintiff enjoyed the exclusive use of the name from 1892 until 1910. In that year, J. D. Fletcher, now the active manager of the Nashville Syrup Company (herein called defendant), became interested with others in the manufacture of a somewhat similar syrup being sold under the name 'Murfe's Cola.' Later in that year they changed the name of their product to 'Murfe's Coca Kola,' and shortly afterwards, Mr. Fletcher became sole owner of the business, and the product was named 'Fletcher's Coca Cola,' and has been sold by him and his successor, the Nashville Syrup Company, under that name. [Coca Cola Co. sued.]

There remains the question whether the mark is deceptive.... [W]e assume that if the registered words clearly carried deception, and if their use really represented to the purchasers that the article was something essentially different from the thing which they actually received, the courts would not enforce any exclusive rights under such registration, both because plaintiff would come into court with unclean hands, and because such words could not be within the fair contemplation of the act, when it refers to 'any mark * * * which was in actual and exclusive use as a trade-mark,' etc....

The argument is that the use of the name, 'Coca Cola,' implies to the public that the syrup is composed mainly or in essential part of the coca leaves and the cola nut; and that this is not true. The fact is that one of the elements in the composition of the syrup is itself a compound made from coca leaves and cola nuts. This element becomes a flavor for the complete syrup, and is said to impart to it aroma and taste characteristic of both. This flavoring element is not in large quantity (less than 2 per cent.), but it is impossible to say that it does not have appreciable effect upon the compound. The question then is whether the use of the words is a representation to the public that the syrup contains any more of coca or of cola than it really does contain....

Plaintiff's counsel say, and so far as we see accurately say:

'The use of a compound name does not necessarily * * * indicate that the article to which the name is applied contains the substances whose names make up the compound. Thus, soda water contains no soda; the butternut contains no butter; cream of tartar contains no cream; nor milk of lime any milk. Grape fruit is not the fruit of the grape; nor is bread fruit the fruit of bread; the pineapple is foreign to both the pine and the apple; and the manufactured food known as Grape Nuts contains neither grapes nor nuts.' ...

We conclude that the name Coca Cola as applied to plaintiff's product, while undoubtedly suggestive, is not so substantially and really deceptive as to invalidate the registered mark.

	[Eugene Volokh, June 5, 2009 at 12:16pm] Trackbacks Lies, Damn Lies, and Grape Nuts: Ann Althouse, guest-blogging at InstaPundit posts about a failed consumer fraud lawsuit about "crunchberries": Turns out there are no actual berries called "crunchberries" in Cap'n Crunch, but that's not a problem, the judge ruled. (Who knew?) But she also asks, "AND: Did anyone ever sue Grape-Nuts?," which is a great excuse to mention Nashville Syrup Co. v. Coca Cola Co., 215 F. 527 (6th Cir. 1914): Since [1892], [the Coca Cola Co.] has continuously manufactured and sold a syrup under the name, 'Coca Cola'; and, used as a basis for carbonated drinks, the syrup, under this name, has had a large sale in all parts of the country.... Plaintiff enjoyed the exclusive use of the name from 1892 until 1910. In that year, J. D. Fletcher, now the active manager of the Nashville Syrup Company (herein called defendant), became interested with others in the manufacture of a somewhat similar syrup being sold under the name 'Murfe's Cola.' Later in that year they changed the name of their product to 'Murfe's Coca Kola,' and shortly afterwards, Mr. Fletcher became sole owner of the business, and the product was named 'Fletcher's Coca Cola,' and has been sold by him and his successor, the Nashville Syrup Company, under that name. [Coca Cola Co. sued.] There remains the question whether the mark is deceptive.... [W]e assume that if the registered words clearly carried deception, and if their use really represented to the purchasers that the article was something essentially different from the thing which they actually received, the courts would not enforce any exclusive rights under such registration, both because plaintiff would come into court with unclean hands, and because such words could not be within the fair contemplation of the act, when it refers to 'any mark * * * which was in actual and exclusive use as a trade-mark,' etc.... The argument is that the use of the name, 'Coca Cola,' implies to the public that the syrup is composed mainly or in essential part of the coca leaves and the cola nut; and that this is not true. The fact is that one of the elements in the composition of the syrup is itself a compound made from coca leaves and cola nuts. This element becomes a flavor for the complete syrup, and is said to impart to it aroma and taste characteristic of both. This flavoring element is not in large quantity (less than 2 per cent.), but it is impossible to say that it does not have appreciable effect upon the compound. The question then is whether the use of the words is a representation to the public that the syrup contains any more of coca or of cola than it really does contain.... Plaintiff's counsel say, and so far as we see accurately say: 'The use of a compound name does not necessarily * * * indicate that the article to which the name is applied contains the substances whose names make up the compound. Thus, soda water contains no soda; the butternut contains no butter; cream of tartar contains no cream; nor milk of lime any milk. Grape fruit is not the fruit of the grape; nor is bread fruit the fruit of bread; the pineapple is foreign to both the pine and the apple; and the manufactured food known as Grape Nuts contains neither grapes nor nuts.' ... We conclude that the name Coca Cola as applied to plaintiff's product, while undoubtedly suggestive, is not so substantially and really deceptive as to invalidate the registered mark.