Miles Labs., Inc. v. Henry J. Frolich, D/B/A Encino Chemicals, 296 F.2d 740 (9th Cir. 1961). · Go Syfert
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Miles Labs., Inc. v. Henry J. Frolich, D/B/A Encino Chemicals, 296 F.2d 740 (9th Cir. 1961). Cases Citing This Book View Copy Cite
20 citation events across 11 distinct courts.
Strongest positive: Laurel Capital Group, Inc. v. BT Financial Corp. (pawd, 1999-04-15)
Treatment trajectory · 1961 → 2026 · click a year to view as-of
1961 1993 2026
Top citers, strongest first. 2 distinct citers. How cited ↗
cited Cited "see" Laurel Capital Group, Inc. v. BT Financial Corp.
W.D. Pa. · 1999 · signal: see · confidence high
See Miles Labs., Inc. v. Frolich, 195 F.Supp. 256, 257 (S.D.Cal.1961), aff'd, 296 F.2d 740 (9th Cir.1961). 9 .
cited Cited "see" Zippo Manufacturing Company v. Rogers Imports, Inc.
S.D.N.Y. · 1963 · signal: see · confidence high
See Miles Labs., Inc. v. Frolich, 195 F. Supp. 256, 262 (S.D.Cal.), aff’d per curiam, 296 F.2d 740 (9 Cir. 1961), cert. denied, 369 U.S. 865 , 82 S.Ct. 1030 , 8 L.
Retrieving the full opinion text from the archive…
MILES LABORATORIES, INC., Appellant,
v.
Henry J. FROLICH, D/B/A Encino Chemicals, Appellee
17491_1.
Court of Appeals for the Ninth Circuit.
Dec 26, 1961.
296 F.2d 740
William T. Woodson, Chicago, 111., Reginald E. Caughey, Los Angeles, Cal., for appellant., Woodson, Pattishall & Garner, Chicago, 111., and Lyon & Lyon, Los Angeles, Cal., of counsel, for appellee., Henry J. Frolich, in pro. per.
Barnes, Merrill, Browning.
Cited by 5 opinions  |  Published
Reporter's Syllabus — editorial summary, not part of the Court's opinion

Appeal from the United States District Court for the Southern District of California, Central Division; M. D. Crocker, Judge.

William T. Woodson, Chicago, Ill., Reginald E. Caughey, Los Angeles, Cal., for appellant.

Woodson, Pattishall & Garner, Chicago, Ill., and Lyon & Lyon, Los Angeles, Cal., of counsel, for appellee.

Henry J. Frolich, in pro. per.

Before BARNES, MERRILL and BROWNING, Circuit Judges.

PER CURIAM.

Lead Opinion

PER CURIAM.

The appellant contends that appellee’s use of the trademark MILK-O-SELTZER in the sale of a medicinal preparation designed for the relief of headache and upset stomach infringes the appellant’s trademark ALKA-SELTZER, used for the same purposes, and also that such use constitutes unfair competition. The United States District Court for the Southern District of California, Central Division, held to the contrary. We affirm the judgment of the District Court on the basis of the well-reasoned opinion of Judge M. D. Crocker, D.C., 195 F.Supp. 256.

Dissent

MERRILL, Circuit Judge

(dissenting).

I dissent and would reverse.

These parties are and will continue to be in competition. Nothing we do here will alter that fact. The question is not as to whether they may compete with each other but as to the names under which they may compete with each other.

One need only repeat these two names one after the other, like an oldfashioned college cheer, to perceive the extraordinary similarity in sound. I cannot rationally escape the conviction that such similarity was deliberately intended by the appellee. To me it is a clear case of imitation. I cannot rationally escape the conviction that some confusion of the consumer must result.

I do not feel it proper or necessary in the name of fair competition that a newcomer to this highly competitive arena should, simply because he is a newcomer and competitively weak, be permitted to hitch a ride.from his established competitors. This is precisely what we do here when we permit him to appropriate as his appellation a sound which has by his competitor been made to ring so familiarly upon the public ear.