Eastern Wine Corp. v. Winslow-Warren

FRANK, Circuit Judge. In its petition for rehearing, plaintiff for the first time urges that, since its trade-name is not registered, we must apply the state rule of decisions under Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188, 114 A.L.R. 1487; asserts that the applicable rule here is that of Connecticut; and now first directs our attention to the Connecticut decisions. Whether, in a suit in equity, the rule of Erie R. Co. v. Tompkins invariably applies has not yet been fully determined by the Supreme Court and is a question not altogether free from doubt, since the doctrine of the Erie case is now perhaps to be taken as founded upon the Judiciary Act of 1789 (28 U.S.C.A. § 725) which, by its literal terms, applies only to ""trials at common law.""1 But, assuming that the Connecticut decisions are controlling, there is no occasion for changing the decision at which we previously arrived. In Middletown Trust Co. v. Middletown National Bank, 110 Conn. 13, 147 A. 22, 25, the court stated: ""No inflexible rule can be laid down as to what use of names will constitute unfair competition; this is a question of fact. * * * It is not sufficient that some person may possibly2 be misled, but the similarity must be such that any person, with such reasonable care and observation as the public generally are capable of using and may be expected to exercise, would be likely to mistake one for the other."" We find nothing in that or any other Connecticut decision suggesting that our previous conclusion was erroneous.3