Since September 1954 plaintiff has been manufacturing and selling polyethylene pitchers with labels affixed carrying the words 'Poly Pitcher' in large letters. A statement that plaintiff is the manufacturer appears in small print. In May 1957 United began to market its polyethylene pitchers, in form substantially like plaintiff's, with a label bearing the words 'Poly Pitcher' in large letters and its own name in small print. United's label also contained its trademark, 'Ster-lite,' but the prominence of this was played down in comparison with the emphasis given to 'Poly Pitcher,' Other features of defendant's labels made them visually similar to plaintiff's label.
The district court held, quite correctly, that words which are merely descriptive of the qualities, ingredients or composition of an article cannot be appropriated as a trademark and are not entitled to protection unless they have acquired a secondary meaning. It found that 'poly' was widely used in trade and general publications as synonymous with polyethylene, that in numerous advertisements of its pitchers and other articles of houseware plaintiff used 'poly' in a descriptive sense as denoting that they were manufactured of unbreakable polyethylene, and that plaintiff had failed to prove that the words 'Poly Pitcher' had acquired a secondary meaning. Upon the basis of these findings the court denied plaintiff relief, presumably — although it did not say so expressly — because it concluded that 'Poly Pitcher' was descriptive of a pitcher which was made of polyethylene.
The findings which underlay the decision were either based on documentary evidence or oral evidence which is undisputed. Accepting this evidence at face value we are satisfied that the finding of descriptiveness based thereon was clearly erroneous.
We lay aside at the outset the fact that both before and after plaintiff began to use 'Poly Pitcher,' the word 'poly' was understood in the trade and used in trade magazines as an abbreviation for polyethylene. The trade encompassed retail outlets, department stores, and large supermarket chains, through which plaintiff marketed its wares. Members of this group were but intermediaries in the distribution of the pitchers to the ultimate buyer. The success or failure of plaintiff's business depended upon whether the pitchers could be resold to the housewife and other members of the purchasing public. The labels which were on the pitchers when plaintiff initially sold them remained on the pitchers until their point of final sale. It is with reference to the ultimate purchaser that the trademark significance of 'Poly Pitcher' must be determined.
In determining whether a claimed trademark is descriptive at the time of its adoption, its meaning to a nonpurchasing segment of the population is not important. The critical question is whether the mark is descriptive to the prospective purchasers of the article. In Le Blume Import Co. v. Coty, the court held that a word, 'L'Origan,' which was not in general use and was unintelligible and nondescriptive to the general public which comprised the ultimate purchasers, could properly by regarded as arbitrary and fanciful and capable of trademark usage, even though to linguists or scientists the name might have a descriptive connotation. In Pennsylvania Salt Mfg. Co. v. Myers, in dealing with the word 'Saponifier,' which had been claimed as a technical trademark for lye, the court said that to a student familiar with Latin and etymology the word might suggest an article having something to do with soapmaking; but it added, to 'the uneducated part of the community (which) generally deal(s) in this article * * * the word * * * would probably have no special etymological signification (but) * * * would be considered as a fanciful or arbitrary term, and in no sense descriptive of the quality, characteristics, or ingredients of the article.' The test of descriptiveness is 'the meaning attached to the designation by prospective purchasers rather than the scientific meaning.'
So that in testing the initial validity of 'Poly Pitcher' as a common law trademark the critical question is what the expression meant to the purchasing public. If it meant a pitcher made of polyethylene it could claim no validity as a trademark; but if its connotation was arbitrary or fanciful, it met the test of a valid trademark.
The record is devoid of any worth-while evidence to show that at the time when plaintiff first began to use the 'Poly Pitcher' labels the public generally understood 'poly' to be synonymous with polyethylene or that 'Poly Pitcher' meant a pitcher which was made of polyethylene. Indeed, it would have been astonishing if it had any such understanding of terminology so essentially technical. We have been referred to no dictionary, general or scientific, which indicates that 'poly' meant polyethylene. Webster's New International Dictionary (2d Ed. 1958) defines 'poly' as 'consisting of many,' 'a plurality,' 'a number above the normal.' In the absence of any evidence to the contrary, we cannot assume that to members of the public at large the word 'poly,' either alone or in combination with 'pitcher,' had any meaning other than that attributed to it by the lexicographer. Unless a word gives some reasonably accurate — some tolerably distinct knowledge — as to what the product is made of, it is not descriptive within the meaning of trademark terminology. 'Poly Pitcher' . . . would not convey to a person who had never seen the pitcher, and who did not know what it was, any idea of its character, nor would it be an appropriate term to be used by a person desiring to describe it.
Moreover, 'Poly Pitcher' is reminiscent or suggestive of Molly Pitcher of Revolutionary time. As used, it is an incongruous expression, and has the characteristics of a coined or fanciful mark. A technical trademark, consisting of a coined or fanciful expression, comes into being as soon as it is affixed to the goods and the goods are sold. Priority of user alone is controlling. The presumption that a fanciful word or mark becomes distinctive and identifies the source of goods on which it is used immediately after adoption and bona fide first use is basic in trademark law. At the time of its first adoption by plaintiff, 'Poly Pitcher' had all of the essentials of a valid common law trademark.
In Re Crown Zellerbach Corp. does not compel a different conclusion. There, the Patent Office refused to register 'Poly Paper' upon the ground that it was a descriptive name for the applicant's product. This was based upon evidence that the applicant had used 'poly' interchangeably with polyethylene in connection with one form or another of wrapping paper, and that applicant's competitors had described polyethylene coated packaging and wrapping materials as 'poly liners or bags' and the like. 'Poly Paper' was proven to be descriptive to a large class of persons having to do with it. Where this is the case a mark cannot be registered under the statute even though there may be another class to whom the mark denotes origin. An understanding by the houseware trade that 'Poly Pitcher' meant a pitcher made of polyethylene, would have defeated plaintiff's right to have the mark registered under the statute; but this would not deprive the mark of its common law validity in its relationship to the purchasing public, if, as we have found, to the public at large the mark was not descriptive but a coined or fanciful expression.
This brings us to the question whether 'Poly Pitcher,' although originally valid as a common law trademark, lost its trademark significance before the defendants first began to use the term in May 1957. In 3 Restatement, Torts § 735, comment a (1938), it is stated that although a designation in its original significance is arbitrary or fanciful in relation to the goods on which it is used, its value as a trademark will be lost if it later comes to be understood in the market as descriptive of the goods. This view of the law presents the case in the most favorable light from defendant's standpoint and we shall assume that it is the correct principle to be applied.
In attempting to determine what the buying public understood by 'Poly Pitcher' when the defendants began to use the mark, the manner in which the plaintiff and others used the words in trade magazines must be disregarded, for they were not intended for, and presumably did not reach, the eyes of the ultimate purchaser. When this medium is eliminated, the only significant proof of public understanding is that to be inferred from plaintiff's advertisements in newspapers in general circulation. Twice in November 1954 plaintiff ran advertisements in the Los Angeles Times and twice in the spring of 1955 in the Trenton News in which the words 'Poly* Pitcher' were prominently featured. The advertisement contained the following explanation of the asterisk's significance: '*Made of unbreakable polyethylene.' In the late summer and early fall of 1955 plaintiff ran a total of six advertisements in the Chicago Sun, Philadelphia Inquirer and the Trenton News which depicted articles described as 'Poly Pitchers,' 'Poly Cutlery Trays,' 'Poly Mixing Bowls,' 'Poly Butter Dishes,' and 'Poly Ice Cube Trays,' and indicated that was a part of plaintiff's general line of 'Poly Ware (Made of Polyethylene).' The last of these advertisements appeared about a year and a half before the defendant began to use 'Poly Pitcher' on its labels.
What the buying public understood 'Poly Pitcher' to mean when defendant adopted the mark is a question of fact. Yet defendant offered no evidence as to public understanding except the advertisements themselves. In our view it cannot be said as a matter of law that plaintiff's advertising techniques caused the public to understand that 'Poly Pitcher' meant any plastic pitcher regardless of who the manufacturer might be. The content of the advertising could well have taught the public to understand that if a pitcher bore a 'Poly Pitcher' label it was a polyethylene pitcher of plaintiff's manufacture. This likelihood is enhanced by the advertising value which inhered in the sale of the pitchers themselves.
During 1955 and 1956 plaintiff sold in excess of 1,500,000 pitchers with 'Poly Pitcher' labels attached. None of these labels so much as mentioned polyethylene. The advertising impact of the labeled pitchers was substantial. They were brought directly to the attention of the purchasing public and were a daily reminder of the source — rather than composition — significance of 'Poly Pitcher.' When the force of the label on the consciousness of the buying public is considered in conjunction with plaintiff's newspaper advertising, it cannot be held that the inevitable result of the latter was to destroy 'Poly Pitcher' as an emblem of origin. At most, the composite impact of the labels and the newspaper advertising was to make the mark suggestive, i.e., to give it a significance somewhere in the middle ground between fanciful and descriptive. A designation having a suggestive connotation may nevertheless be a valid trademark.
Prepared by Jefferson Scher for Law 657: Trademark Law Practice, Summer 2003. Substantial portions of the original opinion have been omitted.