
    COCA-COLA CO. v. BELINSKY.
    No. 4130.
    District Court, E. D. Michigan, S. D.
    Aug. 9, 1944.
    
      Whittemore, Hulbert & Belknap, of Detroit, Mich., for plaintiff.
    Arthur Rubin, of Detroit, Mich., for defendant.
   LEDERLE, District Judge.

I think the reason we took so much time in trying this case is because we overlooked the fact that once it is established by competent evidence that it was defendant’s intention to deceive the public and palm off his goods as those of another, everything that he did thereafter in carrying out that unlawful design became unlawful.

This case is not entirely unlike the Mishawaka case (Mishawaka Rubber & Woolen Mfg. Co. v. S. S. Kresge Co., 6 Cir., 119 F.2d 316, certiorari granted, 314 U.S. 603, 62 S.Ct. 183, 86 L.Ed. 485, reversed in part, 316 U.S. 203, 62 S.Ct. 1022, 86 L.Ed. 1381), which is comparatively fresh in my memory. There can’t be any question but that the defendant intended to deceive the public in what the public was getting. It may be his product was a great deal superior to Coca-Cola. If it was, he should have marketed it in a manner that would give himself the benefit of that superior product.

In this day and age with the difficulty that the average purchaser has in determining whether he is getting a genuine product, or an imitation, certainly a court of equity should keep up with the legislative bodies, the Congress and the State Legislature. Congress has in recent years adopted, as you know, a great many acts tending to protect the ultimate consumer in his right to get that which he ordered and for which he paid. No longer is il possible for the clever manipulator to sell a man a garment claiming that it is wool when it is something else. He can’t even claim that it is virgin or new wool when it is re-used wool. If you look at the labels that are on articles that have come through Interstate Commerce you will find they each carry a label stating exactly the makeup of the product.

There is no particular reason why the purchasers of goods that are protected by the inherent powers of a court of equity should not be given the same consideration as the purchasers of goods covered by these various legislative acts.

Our system of economy is built upon a basis of free enterprise, free competition. You cannot have free enterprise and you cannot have free competition unless everybody is playing the game by the same rules. Obviously, you couldn’t have a golf match that would mean anything when you got through if one of the competitors was permitted to tee up in the traps, and on the fairway, and in the rough, and the other was required to play golf according to the rules.

When you get all through with it, all there is to an action for unfair competition is an action to tell the defendant that if he is going to play the game he will have to play it according to the rules.

The evidence here is more than ample. It is clear and convincing that the defendant started out with the deliberate intention of marketing his product through the assistance and under the guise of being a product that was a substitute for Coca-Cola, and then he neglected to see that the ultimate consumer would always be advised that he was getting a substitute.

There can’t be any excuse for copying, a color unless he intended to deceive somebody. There is nothing particularly enticing about the color of Coca-Cola, as I see it. I know that lemonade is just as attractive. I don’t know but what pink lemonade is just as attractive. There are a lot of other names that could be used.

What I have said here is just in general terms, and I will take the time to write out my findings a little bit more in detail. I think I am going to adopt all of the findings that the plaintiff has asked for, with some explanatory matter added.

Now, the plaintiff is entitled to an accounting. That accounting should move along promptly. It has been my experience that if you do not get an accounting promptly it drags along indefinitely. I have never made a reference to a Special Master; I don’t intend to in this case. I have found that if you handle the matters promptly you can get an accounting through relatively simply.

So, I will ask you, Mr. Beaumont, to prepare a decree in accordance with the prayers in your complaint and present it for signature Monday at 2 p. m.  