Summary
concerning alleged misrepresentation of production of potato chips
Summary of this case from Coca-Cola Co. v. Procter Gamble Co.Opinion
No. 71-1662.
Submitted May 8, 1972.
Decided June 16, 1972.
Melville Ehrlich, Washington, D.C., Lloyd J. Marti, of Marti, O'Gara, Dalton Bruckner, Lincoln, Neb., for appellant Weaver Potato Chip Co., Inc.,
Dean A. Olds, Richard H. Compere, Chicago, Ill., Robert M. Spire, Omaha, Neb., Charles Equator, Chicago, Ill., for appellee; Robert Heer, Minneapolis, Minn., Hume, Clement, Hume Lee, Ltd., Chicago, Ill., Ellick, Spire Langdon, Omaha, Neb., of counsel.
Appeal from the United States District Court for the District of Nebraska.
Before MATTHES, Chief Judge, VAN OOSTERHOUT, Senior Circuit Judge, and HEANEY, Circuit Judge.
Appellants Potato Chip Institute and Weaver Potato chip Co. filed this suit seeking an injunction to prevent General Mills Co. From advertising as potato chips its product called Chips. The Complaint is premised upon § 43(a) of the Lanham Act, 15 U.S.C.A. § 1125, The decisive question, as described by Chief Judge Urban, is as follows:
"The pivotal issue is whether labeling or advertising a product as `potato chips' tends falsely to describe or represent the product when it has been fashioned from dried potato granules rather than from sliced raw potatoes." 333 F. Supp. 173, 175 (D.Neb. 1971).
Judge Urbom, after a five-day hearing, concluded that "the past experiences of the consumer so shades the term with a raw potato overlay. . . " that it would mislead the public to advertise Chips as potato chips without any further explanation. However, he also concluded "that the phrase `potato chip." standing alone, is a generic term which is capable of including both chips made of raw potatoes and chips made of dehydrated potatoes." He also found that defendant's practices of adding to its label the descriptive words "fashioned from derived potato granules," would, if displayed properly, prevent misleading the public because the label would not then misdescribe or misrepresent the product. Accordingly Judge Urbom declined to enjoin General Mills from calling Chipos "Potato chips," but he did permanently enjoin General Mills from advertising Chipos as potato chips "without an accompanying prominent declarations that CHIPOS are made from dried or dehydrated potatoes."
Appellants contention on appeal is that the phrase potato chip has only one meaning, to wit; a thin slice of raw potato fried in deep fat; and therefore that the qualifying phrase does not remove the confusion because it is contradictory rather than explanatory. However, it is well settled that if the contested phrase is susceptible to two meanings so that an explanatory phrase will preclude deception, it is sufficient to require the addition of the explanation rather than prohibit using the ambiguous phrase. see e. g., Jacob Siegel Co. v. F. T. C., 327 U.S. 608, 66 S.Ct. 758, 90 L.Ed. 888 (1946); F. T. C. v. Royal Milling Co., 288 U.S. 212, 217-218, 53 S.Ct. 335, 77 L.Ed. 706 (1933); F. T. C. v. Good-Grape, 45 F.2d 70 (6th Cir. 1930). Cf. F.T.C. v. Army Navy Trading Co., 66 App.D.C. 394, 887 F.2d 776, 779-80 (1937).
The decisive issues in this case, therefore, are the factual questions: (1) whether the phrase "potato" chip" is, as Judge Urbom found, "capable of including both chips made of raw potatoes and chips made of dehydrated potatoes:" and, if so, (2) whether, as he found, use of the explanatory phrase required by the injunction will suffice to prevent misunderstanding the products' contents, We are satisfied that the findings of the district court are responsive to substantial evidence, and that the ultimate judgment was not induced by a misconception of the applicable law. We affirm on the basis of the district court's soundly reasoned opinion.
The view we take of the case renders immaterial the extent, it any, to which Judge Urban relied upon the F.D.A. Guideline for advertising Chipos and in similar product (Pringles).