Mishawaka Rubber & Woolen Manufacturing Co. V S. S. Kresge Co.

316 U.S. 203 (1942)

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Nature of the Case

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Facts

P manufactures and sells shoes and rubber heels, and employs a trade-mark, registered under the Trade-Mark Act of 1905 consisting of a red circular plug embedded in the center of a heel. The heels were not sold separately, but were attached to shoes made by P. P has spent considerable sums of money in seeking to gain the favor of the consuming public by promoting the mark as assurance of a desirable product. D sold heels not made by P but bearing a mark described by the District Court as 'a circular plug of red or reddish color so closely resembling that of P. It is difficult to distinguish between the products. The heels sold by D were inferior in quality to those made by P. P claimed that 'this tended to destroy the goodwill created by P in the manufacture of its superior product.' There was no evidence that particular purchasers were actually deceived into believing that the heels sold by the D were manufactured by P. The Court found that there was a 'reasonable likelihood' that some purchases might have been induced by the purchaser's belief that he was obtaining P's product. The court enjoined future infringement and also ordered that D account to P for profits made from sales 'to purchasers who were induced to buy because they believed the heels to be those of P and which sales P would otherwise have made.' P appealed complaining about the criterion for determining the profits that improperly accrued to D by reason of the infringement. The Sixth Circuit affirmed. The Supreme Court granted certiorari.