12/2/24, 1:10 PM Falcon Rice Mill v. Community Rice Mill, 725 F.

2d 336

casetext.com /case/falcon-rice-mill-v-community-rice-mill

Falcon Rice Mill v. Community Rice Mill, 725 F.2d

336
WISDOM, Circuit Judge: ⋮ 31-39 minutes

Summary
recognizing that § 43 creates a claim for certain sorts of unfair competition and, therefore,
that 15 U.S.C. § 1121 invested the court with subject matter jurisdiction

Summary of this case from Geospan Corp. v. Facet Technology Corp.

No. 82-4451.

February 21, 1984.

L. Lawton Rogers, III, Joseph M. Killeen, Arlington, Va., for plaintiff-appellant.

J. Winston Ardoin, Eunice, La., for defendants-appellees.

Appeal from the United States District Court for the Western District of Louisiana.

Before WISDOM, REAVLEY, and JOHNSON, Circuit Judges.

Falcon Rice Mill (Falcon) brought this suit, alleging that the defendants, Community Rice
Mill (Community) and James Vidrine, were guilty of unfair competition and trade dress
infringement. Falcon sought to recover damages and to enjoin the defendants from using
certain trade dress for their rice. After trial the district court denied the injunction and
dismissed all claims on the ground that Falcon had not established a likelihood of
confusion. We affirm.

"`Trade dress' is a concept which embraces the total image of a given product, including
advertising materials and marketing techniques used to promote its sale." John Wright,
Inc. v. Casper Corp., 1976, E.D.Pa., 419 F. Supp. 292, 317, rev'd in part on other grounds
sub nom. Donsco, Inc. v. Casper Corp., 3 Cir. 1978, 587 F.2d 602. For an excellent
discussion of the protection of trade dress, see Judge Rubin's opinion in Chevron Chem.
Co. v. Voluntary Purchasing Groups, Inc., 5 Cir. 1981, 659 F.2d 695, cert. denied, 1982,
457 U.S. 1126, 102 S.Ct. 2947, 73 L.Ed.2d 1342.

I.

Falcon, located in Crowley, Louisiana, is the successor of Rice City Milling Co., Inc. Rice
City marketed, and Falcon continues to market, its rice in Louisiana and Texas using a
variety of packages, including the three packages at issue here.

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Except for the name of the mill, Falcon's packages are identical with those used by Rice
City before June 1, 1981, when Falcon purchased Rice City.

Falcon sells "HOME COUNTRY" medium grain rice in a white or brown paper bag (Fig. 1).
On the front of the bag, in the center, is a large rectangular drawing, in green, brown, and
white, of a plantation house shaded by a large, moss-laden oak tree. Above this drawing
are the words "HOME COUNTRY" in large green capital letters. Below the picture are the
words "OLD FASHIONED MEDIUM GRAIN" in smaller black capital letters, the word
"RICE" in green capital letters, and the name and address of the mill and the net weight of
the package, in black capital letters. On the sides of the package, the legend "HOME
COUNTRY OLD FASHIONED MEDIUM GRAIN RICE" is repeated in green and black
letters.

Falcon also sells medium grain rice under the "ED'S" label (Fig. 2). This rice is sold in
clear plastic bags. In the center of the bag is a map, in dark blue, of the State of Louisiana.
The word "LOUISIANA" in white capital letters runs diagonally across the state. A white
star and the word "CROWLEY" indicate the location of the mill. Wavy red and white lines
below the state represent the Gulf of Mexico. To the left of the northwest corner of the map
is the word "ED'S" in red letters on a white background. To the right appears the legend
"EXTRA FANCY MEDIUM GRAIN" in blue capital letters, the word "rice" in large white
lower case letters outlined in red and white, and the net weight in small blue capitals. The
legend "ED'S EXTRA FANCY MEDIUM GRAIN RICE" is repeated in red, blue, and white
on the sides.

The photographs reproduced here as Figs. 2-5 were not introduced into evidence but
rather were included by Falcon in its appellate brief. Community criticizes Falcon for
engaging in "misleading tactics" by including these photographs in its brief when the
actual packages were introduced into evidence at trial. Brief for Defendants-Appellees at
5. It would have been more professional for counsel to have introduced the photographs in
the record as exhibits, but we cannot see that they prejudiced Community. We find nothing
"misleading" about these photographs, and use them because they are accurate, relevant,
and helpful to readers of this opinion.

Falcon sells long grain, or Toro, rice in white paper bags (Fig. 3). The word "TORO", in
large orange or red capital letters, appears within a blue oval. Below this, also in orange or
red capitals, are the words "LONG GRAIN RICE", the name and address of the mill
superimposed on a blue band, and the net weight. "TORO LONG GRAIN RICE" appears
on the sides and bottom of the package, again with the word "TORO" within a blue oval.

The individual defendant, James Vidrine, worked as a broker for Rice City until June 1,
1981. At that time, Falcon Rice bought Rice City, and did not employ Vidrine. Shortly
thereafter, Vidrine became a broker for Community, located in Mamou, Louisiana,
approximately 35 miles north of Crowley. He designed, or participated in the design of,
new packages for Community medium and long grain rice, and began calling on many of
the same customers he had called on while employed by Rice City.

After Vidrine went to work at Community Rice, the company adopted a new mark, "CAJUN
COUNTRY". Vidrine testified that this mark is federally registered and that he purchased

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the right to use it on rice packages from another food manufacturer. This mark appears in
decorative capital letters on both the medium and long grain packages. The medium grain
package is a clear plastic bag with a map of Louisiana in green (Fig. 4). The mark "CAJUN
COUNTRY" appears above this map in black letters outlined in white. On the map, in
black capital letters, are the words "LOUISIANA GROWN" and "LOUISIANA MILLED", a
small star in a circle and the word "MAMOU" indicating the mill location. The map rests
atop a large, irregularly shaped, dark blue area suggesting the Gulf of Mexico. In this area,
in small white capital letters, are the words "OLD FASHION MEDIUM GRAIN RICE". The
name and address of the mill and the net weight appear below in black capital letters.
Scattered about the face of the package are five oblong yellow shapes with jagged black
edges, and the words (in black script lettering) "Boudin", "Gumbo", "Etouffe", "Rice
Dressing", "Sauce Piquante", and "Jambalaya". The legend "CAJUN COUNTRY OLD
FASHION MEDIUM GRAIN RICE" appears in black on the sides of the package, with the
words "CAJUN COUNTRY" and "RICE" in the same decorative lettering used on the front
of package.

Community's long grain (Toro) package is also a clear plastic bag (Fig. 5). From top to
bottom the front of the package is labeled as follows: "CAJUN COUNTRY" in decorative
blue capital letters outlined in white; "LONG GRAIN" in orange capital letters outlined in
white; a blue hexagon with the word "TORO" superimposed in orange; "LOUISIANA
GROWN LOUISIANA MILLED" in blue capital letters; "RICE" in orange capitals outlined in
white; the net weight of the rice and name and address of the mill in blue capital letters
outlined in white. "CAJUN COUNTRY LONG GRAIN RICE" appears along the sides of the
bag.

Falcon filed its complaint on July 28, 1982, asserting four causes of action: unfair
competition violating section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) (1982); state
trademark infringement in violation of La.Rev.Stat.Ann. § 51:222 (West Supp. 1982); unfair
competition violating La.Rev.Stat.Ann. § 51:411 (West 1965); and "common law trademark
infringement and unfair competition" under Texas law. Except for the Louisiana trademark
claim, each cause of action alleged that Community's packages, considered in their
entirety, were confusingly or deceptively similar to Falcon's.

The state trademark claim alleged infringement of Falcon's registered mark "TORO". This
mark was first registered in Louisiana on May 29, 1972; the registration was renewed in
1982. As the district court found, however, and as Falcon concedes, "Toro" is a variety of
long-grain rice. Brief for Plaintiff-Appellant at 16. It is therefore a generic term with respect
to rice and may not properly be the subject of Louisiana trademark protection. Vision
Center v. Opticks, Inc., 5 Cir. 1979, 596 F.2d 111, 115-16, cert. denied, 1980, 444 U.S.
1016, 100 S.Ct. 668, 62 L.Ed.2d 646; La.Rev.Stat.Ann. § 51:212 (5)(1) (West Supp.
1983).

On September 13, 1982, the district court conducted a hearing on Falcon's application for
an injunction. The parties stipulated that this hearing would constitute a trial on the merits.
At the end of the trial, the court orally denied the injunction, rendered judgment for
defendants, and dismissed the complaint. On October 8, 1982, the court issued a brief

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memorandum, entitled "Reasons for Judgment", holding that Falcon had failed to establish
a likelihood of confusion between its products and Community's products. Falcon appeals.

Before deciding for the defendants on the merits, the district court orally denied the
defendants' motion to dismiss for lack of jurisdiction. Community had argued that the court
lacked jurisdiction because Falcon had not proved any impact on interstate commerce.
This argument is without merit and the district court correctly rejected it. Falcon alleged
sales in both Texas and Louisiana. While Community contended that its activities were
confined to Louisiana, this contention, if true, would not impair federal jurisdiction. The
Lanham Act clearly prohibits infringement, within a single state, of a trademark used in
interstate commerce. World Carpets, Inc. v. Dick Littrell's New World Carpets, 5 Cir. 1971,
438 F.2d 482, 488-89. Moreover, § 43(a) of the Lanham Act explicitly provides that it
applies whenever goods violating its provisions "enter into commerce", 15 U.S.C. §
1125(a) (1982); § 45 provides in turn that "`commerce' means all commerce which may be
lawfully regulated by Congress", 15 U.S.C. § 1127 (1982). Without doubt this provision
would extend to Community's intrastate activities since they had an impact on Falcon's
interstate activities.
Accordingly, the district court had jurisdiction of the Lanham Act claim under § 39 of the
Lanham Act, 15 U.S.C. § 1121 (1982), and 28 U.S.C. § 1338(a) (1976), and jurisdiction of
the state law claims under 28 U.S.C. § 1338(b) (1976).

II.

Although Falcon asserts four causes of action, the underlying issue is the same in each:
are Community's packages so similar to Falcon's that they create a likelihood of confusion
as to the source of the products? "[T]he basic test under every type of `unfair competition'
is the `likelihood of confusion' test." Chevron Chemical Co. v. Voluntary Purchasing
Groups, Inc., 5 Cir. 1981, 659 F.2d 695, 703, cert. denied, 1982, 457 U.S. 1126, 102 S.Ct.
2947, 73 L.Ed.2d 1342; accord, Amstar Corp. v. Domino's Pizza, Inc., 5 Cir., 615 F.2d 252,
265, cert. denied, 1980, 449 U.S. 899, 101 S.Ct. 268, 66 L.Ed.2d 129. In this circuit it is
well settled that likelihood of confusion is a question of fact and the trial court's
determination may be reversed only if clearly erroneous. Chevron, 659 F.2d at 703;
Amstar, 615 F.2d at 257-58; T.G.I. Friday's, Inc. v. International Restaurant Group, Inc., 5
Cir. 1978, 569 F.2d 895, 899; American Foods, Inc. v. Golden Flake, Inc., 5 Cir. 1963, 312
F.2d 619, 624; Sears Roebuck Co. v. All States Life Ins. Co., 5 Cir., 246 F.2d 161, 168,
cert. denied, 1957, 355 U.S. 894, 78 S.Ct. 268, 2 L.Ed.2d 192. If the trial court misapplies
the governing legal standards, however, the "clearly erroneous" standard is inapplicable.
Chevron, 659 F.2d at 703; Continental Motors Corp. v. Continental Aviation Corp., 5 Cir.
1967, 375 F.2d 857, 859. Falcon argues that the court's findings in this case are thus
tainted and urges us to examine the facts on our own. Our examination of the record
convinces us, however, that the district court's opinion shows an understanding and
application of the proper legal standards.

Likelihood of confusion as to source is the essential ingredient of a federal unfair

competition claim under the Lanham Act. Chevron, 659 F.2d at 703; Sun-Fun Prods. v.
Suntan Research Dev., Inc., 5 Cir. 1981, 656 F.2d 186, 192. The same is true of an unfair
competition claim under Texas common law. Supreme Assembly, Order of Rainbow for

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Girls v. J.H. Ray Jewelry Co., 5 Cir. 1982, 676 F.2d 1079, 1086 n. 10; Miller v. Lone Star
Tavern, Inc., 1979, Tex.Civ.App.-Waco, 593 S.W.2d 341, 344. Likelihood of confusion is
required explicitly by the Louisiana trademark statute. La.Rev.Stat.Ann. § 51:222(1) (West
Supp. 1983). The Louisiana unfair competition statutes require a showing of "fraud", but
this is tantamount in many cases to likelihood of confusion and in any event at least a
likelihood of confusion must be established to show fraud. T.G.I. Friday's Inc. v.
International Restaurant Group, Inc., 5 Cir. 1978, 569 F.2d 895, 899; Straus Frank Co. v.
Brown, 1964, 246 La. 999, 169 So.2d 77; Huth v. Rosenzweig, 1946, La.App. Orleans, 27
So.2d 742.
Falcon asserts that unfair competition may be established in the absence of a likelihood of
confusion, if other factors are shown. Falcon points to the prior association between
Vidrine and Rice City; Vidrine's knowledge of Falcon's trade dress; Community's adoption
of a new trademark, "CAJUN COUNTRY", with an allegedly similar meaning to Falcon's
"HOME COUNTRY"; Community's adoption of trade dress "with considerable similarity" to
Falcon's trade dress; and Vidrine's marketing to the same customers. Falcon relies on
B.H. Bunn v. AAA Replacement Parts Co., 5 Cir. 1971, 451 F.2d 1254, contending that the
Court found unfair competition in that case even though the plaintiff's trademark had not
been infringed. This argument misreads the case. The Court, interpreting Florida law,
stated explicitly, "The gist of unfair competition . . . is `palming off'." Id. at 1262. The Court
held that, while the plaintiff's trademark had not been infringed, the defendant's similar
mark, in combination with a demonstrated intent to copy, created a likelihood of confusion
as to the source of the products. Id. at 1264-65.

The standard of review is not clearcut elsewhere. See Elby's Big Boys, Inc. v. Frisch's
Restaurants, Inc., 1982, 459 U.S. 916, 103 S.Ct. 231, 231, 74 L.Ed.2d 182, 183 (White, J.,
dissenting from denial of writ of certiorari). Gilson indicates that "likelihood of confusion" is
a question of fact in most circuits, but that other circuits either view it as a mixed question
of law and fact or use the clearly erroneous standard to review findings on some of the
factors but not others (e.g., similarity of design). 1 J. Gilson, Trademark Protection and
Practice § 8.14 (1983).

Falcon argues first that the district court misconstrued this case as one involving only
trademark, not trade dress. The difference is an important one. Falcon concedes that the
mark "Toro" is descriptive and that Community's mark "CAJUN COUNTRY" does not per
se infringe Falcon's mark "HOME COUNTRY", but argues that the overall appearance of
Community's packages is confusingly similar to the overall appearance of Falcon's
packages. Falcon points to language in the district court's opinion that, Falcon says,
demonstrates that the court misunderstood this distinction. The court used the term "trade
dress" only once, in the first sentence of the opinion, and thereafter used the word
"trademark". The court also noted that "TORO" is a very weak "trademark", and stated that
Falcon desires "to permanently enjoin the use by defendants of Vidrine's federally
registered trademark, `Cajun Country', as that mark is presently employed on
Community's products".

See note 1.

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Without doubt, the Lanham Act and state law doctrines of unfair competition protect trade
dress as well as individual trademarks. Chevron, 659 F.2d at 702; Sun-Fun Products v.
Suntan Research Development, Inc., 5 Cir. 1981, 656 F.2d 186, 192; Keebler Co. v.
Rovira Biscuit Corp., 1 Cir. 1980, 624 F.2d 366, 376-77. If the district court had
misapprehended the nature of the case, that mistake would plainly be grounds for
reversal. A fair reading of the district court's reasoning, however, makes clear that the
court fully understood that the case involved trade dress. The court recognized that Falcon
sought to enjoin the use of "CAJUN COUNTRY" only "as that mark is presently
employed". The court referred to the mark "TORO" in the context of analyzing all the
marks on Falcon's packages for their strength and descriptiveness. Finally, and most
convincingly, the court noted that while "the trademarks . . . contain individual superficial
similarities . . . considering the over-all impression conveyed by the designs, the
trademarks are not deceptively similar. . . ." The court did understand the nature of the
case, and when it found no likelihood of confusion it based that finding on a consideration
of the trade dress viewed as a whole.

Falcon also argues that the district court misapplied the "likelihood of confusion" standard
by requiring Falcon to show confusion of products rather than confusion as to source.
Falcon points to the court's statement that "[t]he issue is whether the trademarks
employed by defendants create a likelihood of confusion between their products and those
of Falcon". Falcon's interpretation of this sentence is a strained one. We read it as
indicating that the court correctly understood its inquiry to be whether consumers would be
confused about which company milled the rice. Later in its opinion the court explicitly
stated that the overall impression of the designs was not such "as to convey the thought
that both packages of Toro rice were milled, processed, and marketed by Falcon". The
court correctly understood that the question was confusion as to source.

No evidence of actual confusion was introduced, and the court stated, "In the absence of
such evidence we cannot say that plaintiff has carried its burden of proof in this case".
According to Falcon, this statement demonstrates that the court improperly required a
showing of actual, rather than likely, confusion.

Actual confusion need not be shown in a suit for equitable relief, Chevron, 659 F.2d at
704, although it must be proved to recover damages under section 43(a) of the Lanham
Act. Frisch's Restaurants, Inc. v. Elby's Big Boys, Inc., 6 Cir., 670 F.2d 642, 647, cert.
denied, 1982, 459 U.S. 916, 103 S.Ct. 231, 74 L.Ed.2d 182; Warner Bros. v. Gay Toys,
Inc., 2 Cir. 1981, 658 F.2d 76, 79. But actual confusion is "patently the best evidence of
likelihood of confusion", Chevron, 659 F.2d at 704, and a showing of actual confusion
probably requires a finding of likelihood of confusion even in the absence of other proof,
see Frisch's, 670 F.2d at 648 n. 5. The context of the district court's comment is significant:
having considered all the other indicia of confusing similarity and finding little to support
Falcon's position, the court simply held that in all probability only a showing of actual
confusion would be strong enough evidence to swing the case in Falcon's favor. In
Amstar, this Court similarly held that the weakness of the trademark and other factors
compelled a finding of no likelihood of confusion "[i]n the absence of any solid evidence of
actual confusion". 615 F.2d at 264. In the present case the district court stated explicitly,
"Considering the above factors . . . there exists no likelihood of confusion." Actual

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confusion was one of the factors considered by the trial court, but its ultimate inquiry was,
as it should have been, whether confusion was likely.

III.

There is no doubt that the court understood that the ultimate issue in this case was
likelihood of confusion as to source. It remains for us to determine whether the district
court was clearly erroneous in finding no likelihood of confusion. Citing Chevron, 659 F.2d
at 703, and Amstar, 615 F.2d at 259-63, the court listed seven factors to be considered in
deciding this issue: similarity of products, identity of retail outlets and purchasers, identity
of advertising media, type (i.e., strength) of trademark or trade dress, defendant's intent,
similarity of design, and actual confusion. We now examine these factors individually.

These factors may not be relevant in every case, nor are they the only factors that may be
considered. In an appropriate case, factors other than those listed may be relevant. In re
E.I. DuPont DeNemours Co., C.C.P.A. 1973, 476 F.2d 1357, 1361-62. For example, in a
case between noncompetitors, it is appropriate to consider the lack of present competition
as well as the likelihood that one party will expand its product line to compete with the
other. AMF Inc. v. Sleekcraft Boats, 9 Cir. 1979, 599 F.2d 341, 354; see I J. Gilson,
Trademark Protection and Practice § 5.05 (1983). It is often appropriate to consider the
degree of care exercised by purchasers: confusion is more likely, for example, if the
products in question are "impulse" items or are inexpensive. Sun-Fun Prods. v. Suntan
Research Dev., Inc., 5 Cir. 1981, 656 F.2d 186, 189; see note 11. Another factor
sometimes mentioned is "previous contractual or business relations between the parties",
Sun-Fun, 656 F.2d at 189. As in the present case, this factor will usually be considered as
a subcategory of "intent". See note 10. Although the factors are sometimes characterized
as "digits" which are "added together" to reach a "sum total" conclusion whether likely
confusion is established, B.H. Bunn Co. v. AAA Replacement Parts Co., 5 Cir. 1971, 451
F.2d 1254, 1262-63, it is clear that some of the factors are more important than others and
that they may have different weight in different cases, DuPont, 476 F.2d at 1362. The
weight to be given to the various factors is a matter for the factfinder, and as long as it
appears that all relevant proferred evidence was considered and that no impermissible
inferences were drawn from that evidence, the factfinder's determination will not be
overturned unless clearly erroneous.

The first three factors are disposed of simply. Falcon's and Community's products, outlets,
purchasers, and marketing methods are essentially identical, although Vidrine testified
that he was no longer personally selling rice in Texas.

The district court held that the Falcon "trademarks" were weak, because they were largely
descriptive of the variety and geographic origin of the rice. Although the court could have
been more precise had it said "trade dress" rather than "trademark", the court's findings of
fact are based on a correct interpretation of the law regarding the strength of trademark
rights. Marks may be classified as generic, descriptive, suggestive, or arbitrary and
fanciful. These were once conceived as distinct categories but are now commonly viewed
as "central tones in a spectrum"; within this spectrum the strength of a mark, and of its
protection, increases as one moves away from generic and descriptive marks toward
arbitrary marks. Soweco, Inc. v. Shell Oil Co., 5 Cir. 1980, 617 F.2d 1178, 1183, cert.
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denied, 1981, 450 U.S. 981, 101 S.Ct. 1516, 67 L.Ed.2d 816. The district court correctly
held that many of the elements of Falcon's trade dress are weak. "Toro" is the generic
name for the variety of long grain rice sold by both mills; independently, the mark could not
be protected at all. The map of Louisiana, with a star at Crowley, is essentially descriptive
of Falcon Rice's origin. Other marks are stronger — "HOME COUNTRY", for example, is
best described as suggestive, and "ED'S" is apparently arbitrary.

Falcon argues that the design of its packages is "arbitrary". On the Toro bag, for example,
they point to the blue oval and orange and blue lettering. While most elements of design
— that is, colors, shapes, placement of marks on the package, etc. — can independently
be called "arbitrary", no seller can foreclose others absolutely from using any particular
color or other feature. As this Court said in Chevron: "Ortho could not preempt the use of
red and yellow nor does it seek to do so. It seeks only to protect the combination of
particular hues of these colors, arranged in certain geometric designs . . . in such a
fashion that, taken together, they create a distinctive visual impression." 659 F.2d at 703;
see also Vitarroz Corp. v. River Brand Rice Mills, Inc., 1967, S.D.N.Y., 266 F. Supp. 981
(color yellow as background on rice packages not subject to exclusive appropriation). The
packages at issue in Chevron, especially the colors and design, were virtually identical.
See 659 F.2d at 698. Even a "weak" trade dress would be infringed by an identical trade
dress. But a slight variation in color or design will often be enough to avoid confusion. For
this reason, the protection accorded to the color and design aspects of a "distinctive visual
impression" should usually be a weak protection. Considering all the elements, pictorial
and verbal as well as geometric and chromatic, the district court correctly found that
Falcon's trade dress, taken as a whole, was entitled to relatively weak protection.

Falcon also argues that the district court erred in finding that Falcon had not established
that the defendant intended to copy, deceive, or confuse. No direct evidence of intent was
offered, and the court held that Vidrine's prior relationship with Rice City "is insufficient to
establish" intent. Falcon correctly states that intent to deceive or to profit from confusion
may be inferred from the acts of an infringer. See Chevron, 659 F.2d at 704. Falcon
asserts that such an inference is mandated by the facts here. Because of his prior
relationship with Rice City, says Falcon, Vidrine was required to stay "well clear" of
Falcon's marks. For this proposition, Falcon cites Chevron. In that case there was clear
evidence that the defendant "meant to copy Ortho's trade dress, at least `as much as the
law would allow'". Id. Here, however, there is no direct evidence of an intent to copy; more
importantly, the copying is in no respect as blatant or close as that done in Chevron. In the
absence of direct evidence or close copying, we cannot say that the district court was
required to infer intent or that its finding to the contrary was clearly erroneous.

Falcon also cites Cyclonaire Corp. v. United States Sys., 1980, D.Kan., 209 U.S.P.Q. 310,
314-15, and Arnar-Stone Laboratories, Inc. v. Medical Supply Co., 1966, N.D.Ill., 152
U.S.P.Q. 61, 62. A "prior relationship" is sometimes treated as a separate factor, but in this
case the court appropriately considered it in its evaluation of the evidence concerning the
defendants' intent.

The district court found that the designs were not similar. Falcon challenges this finding as
based on an incorrect legal standard. Falcon notes that similarity is to be determined by

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comparing the overall impression created by the designs, rather than by focusing on
details. Chevron, 659 F.2d at 704. We agree with Falcon's statement of the governing
legal standard but reject its contention that the district court failed to apply this standard.
The court noted the various similarities of detail, but found that overall the packages did
not convey the impression that they came from the same source. In challenging this
finding, Falcon paradoxically stresses the detail and ignores the overall differences. We
find that the district court applied the correct standard and that its conclusion is not clearly
erroneous. The packages have different emphases, different typefaces, and different
styles. Community's "CAJUN COUNTRY" medium grain rice package is far more intricate
and flamboyant, with its four colors, varied slogans, and decorative lettering, than Falcon's
simpler "ED'S" package. The same is true, though to a lesser extent, of the Toro rice
packages. Despite Falcon's protestations that in southwest Louisiana "CAJUN
COUNTRY" and "HOME COUNTRY" carry the same connotations, the record does not
support this contention and we cannot agree that these phrases mean the same thing,
even to Cajuns. Although Falcon argues that rice consumers exercise a low degree of
care because the prices are low, this lack of attention does not render different packages
similar. The characteristics of the consuming public, as well as the differences and the
similarities among the packages, were fully and carefully argued before the district court.
That court, applying a correct standard of law, found little overall similarity. There is no
basis for us to disturb this finding.

Falcon presents "degree of care" as a separate factor in its analysis, arguing that there
was evidence that consumers purchase rice largely on the basis of the color of the
package. That evidence was by no means unambiguous, and in any event was
considered in full by the trial court in its determination whether the packages were likely to
be confused by the buying public. This case stands in sharp contrast to American Rice,
Inc. v. Arkansas Rice Growers Coop. Ass'n, 1982, S.D.Tex., 532 F. Supp. 1376, aff'd, 5
Cir. 1983, 701 F.2d 408. That case, like this one, involved claims that rice packages were
confusingly similar, but in that case the consuming public was the people of Saudi Arabia.
The court therefore discounted the differences of detail between the packages and
stressed the overall similarities, because the differences were likely to be imperceptible to
Saudi Arabian consumers. 532 F. Supp. at 1385-86. No evidence in this case suggests
that consumers in Louisiana and Texas are unable or unwilling to perceive the very
marked differences between Falcon's and Community's packages.

Finally, Falcon returns to the issue of actual confusion and asserts that, even if the district
court did not require evidence of actual confusion, it placed too much emphasis on the
absence of such evidence. Falcon observes that such evidence would be especially hard
to produce since the product is inexpensive and the goods involved are identical. See
Chevron, 659 F.2d at 704-05. Moreover, Falcon notes that it brought suit a short time after
Community began marketing its new Cajun Country brand. In these circumstances, lack of
actual confusion should not weigh strongly against Falcon. Id. We find, however, that the
district court did not place undue weight on this factor. When the court reached the issue
of actual confusion, it had already assessed the other factors and had found little to
support a finding of likelihood of confusion. It accordingly noted that only actual confusion
would be enough to overcome the rest of the evidence.

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Falcon also argues that when intent to confuse is established the law presumes actual
confusion. We have already rejected Falcon's assertion that intent was proved, and
therefore need not address this argument.

On the other hand, concurrent use of two marks over a substantial length of time without
actual confusion strongly suggests that there is no likelihood of confusion. Keebler Co. v.
Rovira Biscuit Corp., 1 Cir. 1980, 624 F.2d 366, 377; DeCosta v. CBS, Inc., 1 Cir. 1975,
520 F.2d 499, 514, cert. denied, 1976, 423 U.S. 1073, 96 S.Ct. 856, 47 L.Ed.2d 83;
Affiliated Hosp. Prods. v. Merdel Game Mfg. Co., 2 Cir. 1975, 513 F.2d 1183, 1188; King
Candy Co. v. Eunice King's Kitchen, Inc., C.C.P.A. 1974, 496 F.2d 1400, 1401-02.

IV.

"A finding is `clearly erroneous' when although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite and firm conviction that a
mistake has been committed." United States v. United States Gypsum Co., 1948, 333 U.S.
364, 395, 68 S.Ct. 525, 541, 92 L.Ed. 746, 766; Supreme Assembly, Order of Rainbow for
Girls v. J.H. Ray Jewelry Co., 5 Cir. 1982, 676 F.2d 1079, 1082. "In other words, we
reverse when the result . . . does not reflect the truth and the right of the case." Armstrong
Cork Co. v. World Carpets, Inc., 5 Cir., 597 F.2d 496, 501, cert. denied, 1979, 444 U.S.
932, 100 S.Ct. 277, 62 L.Ed.2d 190. This is certainly not the case here. The district court
correctly applied the governing legal standards and made findings of fact that are fully
supported by the entire evidence. Falcon failed to establish likelihood of confusion; it
cannot prevail on any of its claims.

At most, Falcon has established that a former employee has gone into competition against
his former employer and has appropriated certain elements of Falcon's trade dress in an
effort to improve his competitive position. As long as consumers are not deceived or
confused, however, this is not tortious unfair competition. "The trademark laws exist not to
`protect' trademarks but . . . to protect the consuming public from confusion, concomitantly
protecting the trademark owner's rights to a nonconfused public." James Burrough Ltd. v.
Sign of the Beefeater, Inc., 7 Cir. 1976, 540 F.2d 266, 277. By ensuring correct information
in the marketplace, the laws reduce losses caused by misunderstanding and deceit and
thus permit consumers and merchants to maximize their own welfare confident that the
information presented is truthful. If confusion and deception are avoided, it is not only
acceptable but desirable for a competitor to make his products more pleasing to the
general public. As Justice Brandeis said 45 years ago, the competitor

"is undoubtedly sharing in a market which was created by the skill and
judgment of [another] and has been widely extended by vast expenditures
in advertising persistently made. But that is not unfair. Sharing in the good
will of an article unprotected by patent or trademark is the exercise of a
right possessed by all — and in the free exercise of which the consuming
public is deeply interested."

Kellogg Co. v. National Biscuit Co., 1938, 305 U.S. 111, 122, 59 S.Ct. 109, 115, 83 L.Ed.
73, 80.

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The judgment is AFFIRMED.

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