Home > Journals > Michigan Law Review > MLR > Volume 37 > Issue 8 (1939)
Abstract
In a recent case decided by the United States Supreme Court the following facts appeared. In 1893 a pillow-shaped shredded wheat biscuit was introduced into the highly competitive breakfast food market, and patent rights for the product and its manufacture were secured by the Shredded Wheat Company. Though the basic patent expired in 1912, more than seventeen million dollars were expended in popularizing this particular product. Plaintiff acquired the business and good will of the Shredded Wheat Company in 1930, and continued the extensive advertising of "Shredded Wheat" biscuit. The present suit was begun in 1932 by the National Biscuit Company to enjoin the Kellogg Company from using the name "Shredded Wheat," and from producing its biscuits in the form made popular by plaintiff and its predecessors. After protracted litigation, the Court held that "Shredded Wheat" was a descriptive phrase and hence not capable of exclusive appropriation; that, while the term, through long usage, had come to signify the product of the plaintiff in the minds of many consumers, the defendant had used reasonable means to distinguish its product from that of the plaintiff; that the form of the biscuit adopted by plaintiff, which had passed into the public domain upon the expiration of the patent rights, was functional, and therefore incapable of exclusive appropriation.
Recommended Citation
Thomas K. Fisher,
TRADE MARKS AND TRADE NAMES - DESCRIPTIVE TERMS - "SHREDDED WHEAT'' NOT CAPABLE OF EXCLUSIVE APPROPRIATION AS TRADE NAME,
37
Mich. L. Rev.
1288
(1939).
Available at:
https://repository.law.umich.edu/mlr/vol37/iss8/9