Kellogg Co. v. National Biscuit Co.
305 U.S. 111 (1938)

Annotate this Case

U.S. Supreme Court

Kellogg Co. v. National Biscuit Co., 305 U.S. 111 (1938)

Kellogg Company v. National Biscuit Company

Nos. 2 and 56

Argued October 10, 1938

Decided November 14, 1938

305 U.S. 111

Syllabus

1. The term "shredded wheat" is generic, and no exclusive right to its use may be acquired. P. 305 U. S. 116.

2. Moreover, "shredded wheat" was the general designation of the product made under the product and process patents issued to Perky, upon the expiration whereof there passed to the public not only the right to make the article as it was made during the patent period, but also the right to apply thereto the name by which it had become known. P. 305 U. S. 117.

3. To establish, by application of the doctrine of secondary meaning, the exclusive right to "shredded wheat" as a tradename, the claimant must show that the primary significance of the term in

Page 305 U. S. 112

the minds of the consuming public is not the product, but the producer. P. 305 U. S. 118.

4. The right of a competitor, upon expiration of the patents, to make the patented product and call it by its generic name could not be lost by delay, even though the earlier manufacturer, in the period between the expiration of the patents and the time when the competitor became a factor, had spent large sums in advertising the product. The only obligation of the competitor was to identify its own product lest it be mistaken for that of the earlier producer. P. 305 U. S. 119.

5. Inasmuch as the pillow-shaped biscuit was the form in which shredded wheat was made under the patents and in which the article became generally known, the form was dedicated to the public upon expiration of the patents. P. 305 U. S. 119.

6. Upon the facts of this case, held that the Kellogg Company, in making and selling "shredded wheat" biscuits under that name, in pillow-shape form, in competition with a similar product of the National Biscuit Company (successor to the Shredded Wheat Company), was not doing so unfairly. The obligation resting upon the Kellogg Company was not to insure that every purchaser would know it to be the maker of the biscuits sold by it, but to use every reasonable means to prevent confusion. P. 305 U. S. 120.

There was no evidence in this case of "passing off" or deception on the part of the Kellogg Company.

7. The Kellogg Company is not obliged to refrain from using the name "shredded wheat" and to make its biscuit in some other than the pillow-shape form. It is entitled to share in the goodwill of an article unprotected by patent or trademark. Furthermore, the evidence is persuasive that the plllow-shape form must be used, because it is functional. P. 305 U. S. 121.

8. The question whether the Kellogg Company's use upon its packages of a picture of two shredded wheat biscuits in a bowl was a violation of a trademark of the National Biscuit Company, held not before this Court on the present record. P. 305 U. S. 122.

91 F.2d 150; 96 id. 873, reversed.

Certiorari, 304 U.S. 586, to review decree of in junction against the petitioner and a later order clarifying the decree. A petition for certiorari to review the first decree had previously been denied, 302 U. S. 733. Jurisdiction

Page 305 U. S. 113

of the federal court was based upon diversity of citizenship.

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