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William R. Warner & Co. v. Eli Lilly & Co.

United States Supreme Court
265 U.S. 526 (1924)


In 1899, Eli Lilly & Company (Eli Lilly) (plaintiff) began selling a combination of chocolate and quinine under the Coco-Quinine mark. After a few years, several other companies began selling a similar product, and William R. Warner & Company (Warner) (defendant) developed and began selling a nearly identical product under the Quin-Coco mark. At some point, Warner’s employees began inducing third-party retailers to replace orders of Coco-Quinine with Quin-Coco by using the incentive of lower cost. Eli Lilly brought a suit against Warner for trademark infringement and unfair competition. The district court refused to grant an injunction enjoining Warner from using the Quin-Coco mark or from selling quinine formula with chocolate or chocolate coloring. The court of appeals affirmed the decision on trademark infringement but found Warner guilty of unfair competition. Warner appealed the judgment of the court of appeals.

Rule of Law


Holding and Reasoning (Sutherland, J.)

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Questions & Answers

How to differentiate passing off and trademark infringement

I'm having a hard time differentiating between the doctrines of passing off and trademark infringement. In class we were given the following examples:

Tort Of Passing Off → when customer orders Coke and is served glass of Brand X cola

Trademark Infringement → Brand X cola puts its product in Coke bottles

However, the more I look at these examples the more confused I get. I don't understand the difference, for example what trademark infringement would have looked like in this case since this case asserted that what happened here was passing off and not trademark infringement. I understand that since the names of the two companies were descriptive that trademark could not have been granted bc That would prevent other items fitting the description from also incorporating descriptive terms, but is that the only reason?

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