Full opinion text
FOX, District Judge. Plaintiff, General Motors Corporation, is a Delaware corporation, having its principal office and an established place of business in Detroit, Michigan, and is the successor to General Motors Corporation, a New Jersey corporation, Cadillac Motor Car Company, a Michigan corporation, and Cadillac Automobile Company, a Michigan corporation which was organized in 1902. Cadillac Marine & Boat Co., the original defendant, was a Michigan corporation organized September 9, 1953, with its principal place of business in Cadillac, Michigan. Cadillac Marine & Boat Co. was a wholly owned subsidiary of Wagemaker Company, Inc., a Michigan corporation. In 1960 and 1961, after a series of changes of stock control, that company became Ash-Craft Co., which is now one of the defendants in this action. In September 1961, stock control of defendant Ash-Craft Co. was transferred to New Kanawha Corporation, a West Virginia corporation, of which Ash-Craft Co. is now a wholly owned subsidiary. About the same time, defendant Ash-Craft Co. organized a new Michigan corporation under the name “Cadillac Marine & Boat Co.,” which is now one of the defendants herein, but which has conducted no business since its incorporation. Also, in September 1961, the original defendant, Cadillac Marine & Boat Co., was dissolved. The right of Cadillac Marine & Boat Co. to the use of the name “Cadillac” in its corporate name or on its boats was validly transferred to defendants Ash-Craft Co. and New Kana-wha Corporation. In November 1962, defendant Ash-Craft Co. and New Kanawha Corporation filed petitions for reorganization under Chapter X of the Bankruptcy Act in the United States District Court for the Southern District of West Virginia. This case arises under the Trademark Act of July 5, 1946, as amended, Title 15 U.S.C. § 1051 et seq.; there is also diversity of citizenship of the parties. This court has jurisdiction over the subject matter and the parties. Plaintiff and its predecessors are and have been engaged in the manufacture, advertising and sale of a veritable cornucopia of products, including automobiles, automobile engines, marine engines, and parts, accessories and equipment. Since 1902, they have manufactured, advertised and sold “Cadillac” automobiles, automobile engines, parts and accessories. Plaintiff is the owner of the following registrations in the United States Patent Office in regard to the “Cadillac” trade-mark: Mark “Cadillac” “Cadillac” crest “Cadillac” “Cadillac” crest and “V” design Registration No. 201,694 (renewed) 201,708 647,241 658,918 Registration Date August 4,1925 August 4,1925 June 18, 1957 February 25, 1958 On August 4, 1925, General Motors secured a registration in the United States Patent Office of the name “Cadillac” in block letters, Trade-Mark 201,694 for “automobiles, in Class 19, vehicles, not including engines, * * On the same day, the plaintiff secured a registration in the Patent Office of a crest with a crown top for the same limited purpose. On June 18, 1957, plaintiff registered a Service Mark, No. 647,241 for: “Maintenance and repair service for automotive vehicles, parts and accessories, in Class 103,” the name “Cadillac” in block letters. On February 25, 1958, plaintiff registered Service Mark No. 658,918 for: “Maintenance and repair service for automotive vehicles, parts, and accessories, in Class 103.” Plaintiff has used the word “Cadillac” in block and script letters, alone and in combination with a “Cadillac” crest and “V” design, as trade-marks on its products since about 1902. Plaintiff has for many years used the word “Cadillac” as part of the trade-name “Cadillac Motor Car Division” in conjunction with the sale and advertising of its goods. The combination of the “V” and crest is stated in the registration of February 25, 1958 as “first in use before 1947; in commerce in or before 1947; in 1903 as to the coat of arms.” Plaintiff has sold over two million automobiles under its “Cadillac” trademark, one million of these during the last ten years. It has spent millions of dollars in advertising, with more than $40,000,000 allocated for advertising during the past ten years alone. The word “Cadillac” has come to identify plaintiff and no one else, to the purchasing public as a source or origin of automobiles, automobile engines, parts, accessories and related goods and services thereto. It does not, however, identify plaintiff as the source or origin of small boats in the channels of the boating industry, nor does it identify plaintiff as the possessor of the trade-mark “Cadillac” for small boats. Plaintiff’s manufacturing, advertising and selling under its trade-mark “Cadillac” has been limited to automobiles and component parts. No present or future intention on the part of plaintiff to manufacture or sell boats or marine products under the name “Cadillac” has been established by the evidence. Plainiff has never manufactured or sold fishing boats, runabouts, or any boats which substantially approach “the same descriptive properties” of defendant’s boats. S. C. Johnson & Son, Inc. v. Johnson, (CCA 2, 1949) 175 F.2d 176, at page 179. Under the name GM and General Motors, plaintiff does manufacture marine diesel engines for use in a substantially larger class of boats and ships than those which are manufactured by the defendant. From the evidence presented at the trial, these activities were the' sum and total of any purported entry by the plaintiff into the marine and boating field. In 1953, defendant began manufacturing runabout type aluminum boats in Cadillac, Michigan. It located in Cadillac as a result of an invitation from the Cadillac Chamber of Commerce. Consistent with the long practice of naming products and industries after the city in which an industry is located and the tradition of geographical trade names, the defendant’s officers, in good faith, decided to name the corporation and the boat after the City of Cadillac and Lake Cadillac. The Michigan Corporation and Securities Commission approved the defendant corporation’s charter, which was issued in 1954 under the corporate name of “Cadillac Marine & Boat Co.” The defendant. Cadillac Marine & Boat Co. first used the trade-mark on its goods December 24, 1953, and on the same day it was first used in interstate commerce. From 1953 to July 31, 1955, defendant also spent a total of $117,786.81 in advertising boats manufactured by it and identified by the trade-mark “Cadillac.” From December 24, 1953 to August 1, 1955, it sold a total of 5,300 boats bearing the trade-mark “Cadillac.” Thereafter, its annual sale of boats was approximately 7,000. On October 28, 1955, defendant Cadillac Marine & Boat Co. filed an application with the United States Patent Office for the trade-mark “Cadillac” for use on its boats. After consideration of the application by the Commissioner of Patents, the trade-mark “Cadillac” for use on defendant’s boats was approved for the purpose of publication in the United States Patent Office Register for March 1956, Application Serial No. 697,-271. In April 1956, plaintiff filed with the Patent Office a notice of opposition to defendant’s application. In December 1956, plaintiff filed an application for extension of the time in which to take testimony in order to discuss settlement. In February of 1957, after the commencement of this suit, plaintiff filed a notice of pendency of the present suit with the Patent Office. As a result of plaintiff’s actions, no" further proceedings were taken by the Patent Office for registration of defendant’s trade-mark “Cadillac.” On April 2, 1957, defendant’s counsel, Mr. R. C. C. Heaney, wrote to Mr. George R. Mosher, Jr., General Motors Counsel, restating a settlement offer which defendant had made to plaintiff before commencement of this suit. Defendant offered “to change or eliminate” all claimed similarity of script, design, insignia, and the use of the letter “V”, retaining only the use of the name “Cadillac.” In addition, defendant agreed to put a “statement on all its letterheads and other printed forms that it is not a part of nor affiliated with Cadillac Motor Car Company.” Plaintiff rejected this offer in a return letter of April 23, 1957. During 1958 and 1959, defendant began manufacturing a similar type of fibre glass boat, in addition to its aluminum boat. These fibre glass boats were also sold under the name “Cadillac” and were impressed with the crest and the “V” marks. The designs of these marks were not identical to those used by the plaintiff. Plaintiff’s “V”-crest combination was not registered as a trade-mark until February 25, 1958, which was after the commencement of this suit. Plaintiff contends that the defendant, by its use of the word “Cadillac” and the crests, “V’s” and script lettering, infringed plaintiff's registered and common law trade-mark and is guilty of unfair competition. Plaintiff also states that the use of the name “Cadillac” by the defendant confuses, misleads, and deceives the public as to the origin of the goods sold by them, or may lead to confusion in the public’s mind. Plaintiff claims that as a result of this use the defendant is guilty of fraudulent intent, actual or constructive, and should be enjoined from any further use of plaintiff’s trade-mark “Cadillac.” For many years Wagemaker Company, Inc. (now defendant Ash-Craft Co.) sold-boats under two principal marks, “Wage-maker” and “Wolverine.” In 1961, defendant discontinued the use of the “Wagemaker” name. The reason assigned by defendant’s President Ash for discontinuing the name “Wagemaker” and using “Ash-Craft” was that “Ash-Craft” was considered a better name to advertise than “Wagemaker.” In its new program defendant has advertised the name “Ash-Craft” with the names “Wolverine” and “Cadillac,” in connection with boats for use with inboard and outboard engines. Many of the “Wolverine” boats were identical with defendant’s boats marked “Cadillac,” except for interchangeable nameplates. “Ash-Craft,” combined with the name “Cadillac” is a distinguishing mark of identification. Defendant’s General Manager testified that the “Wolverine” and “Cadillac” nameplates were the same size so that they could be interchanged, and defendant’s Vice President testified that the only differences between “Wolverine” and “Cadillac” boats were the decals. Defendant’s aluminum boats range in price from $279 to $998, and its plywood boats from $648 to over $2,000. Defendant listed fifteen aluminum boats and ten plywood boats in their “Wolverine” and “Cadillac” lines at identical prices. Some of defendant’s “Wolverine” and “Cadillac” boats were so constructed that inboard engines could be installed. Defendant advertises such boats simultaneously with boats bearing the word “Cadillac” and in conjunction with statements such as “famed Cadillac quality.” It was apparently in this regard that plaintiff introduced proof that Cadillac engines are converted by individuals and commercial enterprises for use in .inboard type boats; but these conversions are done entirely outside the realm of plaintiff corporation. The engines converted for this purpose are automobile engines manufactured and designed for the Cadillac ear; and none of the Cadillac engines are designed, as such, for marine purposes by plaintiff. The water jackets and the safety features which are necessary to accomplish the conversion of the engine to an inboard motor are made by others than the plaintiff. It is a common practice to convert automobile engines of many manufacturers to inboard use in boats. The court finds these conversions in no way constitute an entry by plaintiff into the boating industry channels of trade, so as to deny defendant use of the historical and geographical name “Cadillac” on its boats. In advertising boats, defendant has used display signs, including a neon clock, with the name “Cadillac” superimposed on the outline of a boat, underneath which appears: “The Name That Means The Most In Boats.” Plaintiff further claims that other advertising of defendant shows phrases duplicating or parallelling expressions previously used by plaintiff, or tending to create the same impression, and to foster the mistaken belief that there is a commercial relationship between plaintiff and defendant on their goods. (Plaintiff lists the following examples in its proposed findings of fact.) “Buy a Cadillac;” “You don’t baby a Cadillac;” “ ‘Cadillac’ QUALITY is assured by these fine features;” “Watch for further proof of Cadillac leadership;” “Cadillac dealers get a better deal all the way with a fully protected franchise policy;” and “The huge Cadillac plant — one of the largest in the world.” None of these examples duplicates expressions previously used by plaintiff. The only phrase General Motors ever registered with the Patent Office was “Standard Of The World,” which was first used “on or before September 1945, and in commerce on or before September 1945.” These registrations were obtained on May 22, 1956, and were for automobile parts, as set forth in Registration Nos. 627,311 and 627,265. Plaintiff does not have an exclusive property right in generic terms of excellence, superiority or quality. Defendant discontinued the manufacture of boats in Cadillac, Michigan, in 1961, and is now engaged in the manufacture of aluminum boats in Oak Hill, West Virginia. It also has plans for manufacture of fibre glass boats at its Oak Hill plant. Defendant denies any confusing similarity of the goods or that they have passed off or induced others to sell or pass off, any of its boats as a product of the plaintiff. The defendant further specifically denies that it has committed any acts calculated to cause purchasers to believe that defendant’s products are plaintiff’s, or that defendant has competed unfairly with plaintiff in any way. At a pretrial session on January 29, 1963, the parties entered into a stipulation which provided that the judgment to be entered at the conclusion of the trial should include provisions restraining the defendant from using crests, designs and insignia in any manner which may be confusingly similar to plaintiff’s. Defendant claims that its agreement to this stipulation does not constitute either an admission of wrongdoing by its use of the material described in the stipulation, or that the use of the crest design or “V” insignia was confusing in any manner. Defendant claims it urged the stipulation and agreed to it in order to shorten the trial and reduce costs. The Court finds the last paragraph of the stipulation states the single remaining issue to be tried in this case: “IT IS FURTHER STIPULATED AND AGREED that the issue remaining to be tried by the Court is whether or not defendants shall be enjoined from the use of the word “Cadillac” in any form or manner in connection with their goods.” The stipulation removes questions relating to the distinctive crest, design and insignia, or any assimilation thereof from further consideration in this case on the issue of whether or not the defendant should be enjoined from using the word “Cadillac.” The plaintiff contends, however, that this does not preclude introducing the same material which was covered by the stipulation in evidence since this material as used by the defendant constituted constructive fraud. In the light of the stipulation, this Court finds that this material is admissible only on the issue of constructive fraud. The issue set forth in the last paragraph of the stipulation may be framed by two questions: Has the defendant infringed the plaintiff’s trade-marks as registered under the federal law? Has the defendant infringed plaintiff’s common law trade-mark? The decision on both of these questions and the question posed by the stipulation will resolve the issue of whether or not the defendant has a right to continue in the use of the word “Cadillac.” Relevant to this decision is a determination of the nature of the word “Cadillac.” “Cadillac” is both an historical and a geographical term. It was an historical term before it became a geographical term. The court will not recite all of the historical aspects of the word “Cadillac”. Nevertheless we will consider some highlights. The name “Cadillac” derives its historical origin from the explorer-soldier Antoine de Mothe Cadillac, who was born in 1660 and died in 1720. It was through him that the name “Cadillac” was first introduced upon the North American Continent, and in the territory around Wayne County and Detroit. Since that time the name “Cadillac” has been continuously appropriated and used as the name of sites for parks, forts, squares, streets, cities and lakes, as well as the name of businesses, enterprises and products. Cadillac Square in Detroit bears the name; streets in both the cities of Detroit and Cadillac also bear the name. Long before Cadillac Motor Car Company and Cadillac Automobile Company appropriated the name “Cadillac”, individuals, corporations and copartnerships had adopted the name “Cadillac” as the name in whole or in part of enterprises and of their products. Cadillac, Michigan, was settled in 1871 and in 1877 it was chartered as a city under its present name, after Antoine de Mothe Cadillac. Lake Cadillac also bears the explorer-soldier’s name, and the shores of Lake Cadillac are the site of the City of Cadillac. As evidence of widespread common usage, an examination of the telephone directory of the City of Cadillac, of the City of Detroit, and other cities throughout Michigan and the middle west, will disclose that many businesses use “Cadillac” as part of their name. The City of Cadillac telephone directory in 1957 listed forty-two companies with the word “Cadillac” in their name and the 1962 Detroit telephone directory listed one hundred forty-seven businesses with “Cadillac” as part of their name, such as Sheraton-Cadillac Hotel, Cal-Con-nell Cadillac Co., Cadillac Brick Co., Cadillac Fuel Co., Cadillac Glass Co., Cadillac Hardware Co., and Cadillac Malleable Iron Co. The Michigan Corporation & Securities Commission records reveal fifteen active corporations in Cadillac, Michigan, using “Cadillac” as the first word in their name, forty-four active corporations in the City of Detroit, and fifteen active corporations elsewhere in the State of Michigan. The Commission’s records show inactive corporations within the same categories: ten in Cadillac, seventy-seven in Detroit, and eighteen elsewhere in the State of Michigan. Plaintiff has never been the exclusive user of the name “Cadillac” or the Cadillac seal. The word “Cadillac” has been registered as part of a trade-mark in the Patent Office for use on various products by many persons or businesses other than the plaintiff. The name is registered in block, script, and with and without the Cadillac family seal. The products range from dog food, aluminum furniture, writing paper, binoculars, combination storm and screen sashes, sausage, ham, bacon, lard and cheese, shoes, cigars, sewing machines, rubber stamps, steel embossing marking dies, hand marking machines, vacuum cleaners, blowtorches, air blowers and furnaces, stainless steel flatware, wines, women’s and children’s dresses, cosmetics and other items. Therefore, the name “Cadillac” as a trade-mark possesses the infirmities of a trade-mark which are characteristic of both an historical and geographic name. This was known to the plaintiff corporation when it appropriated the name. That others would use “Cadillac” as a business name and a product name was a foreseeable consequence. The crest use by plaintiff has historical derivation. It likewise bears the infirmities due a historical name in the law of trade-marks. Like the crest, the “V” symbol of plaintiff is also weak. “V” is a letter in the alphabet. It is a common generic symbol. Sir Winston Churchill made it an historical symbol when he regularly used a “V” for victory sign with his fingers. This symbol was adopted by people everywhere. As used by the plaintiff, the mark “V” has become practically unrecognizable. It has embellished the mark with jewels; made “V’s” out of necklaces. It has varied the angle of the “V” until it has become little more than a straight line. Nearly a century ago, the United States Supreme Court in the case of Delaware and Hudson Canal Company v. Clark, 80 U.S. 311, at page 324, 20 L.Ed. 581, observed: “And it is obvious that the same reasons which forbid the exclusive appropriation of generic names or of those merely descriptive of the article manufactured and which can be employed with truth by other manufacturers, apply with equal force to the appropriation of geographical names, designating districts of the country. Their nature is such that they cannot point to the origin (personal origin) or ownership of the articles of trade to which they may be applied. They point only at the place of production, not to the producer, and could they be appropriated exclusively, the appropriation would result in mischievous monopolies. Could such phrases as, ‘Pennsylvania wheat,’ ‘Kentucky hemp,’ ‘Virginia tobacco,’ or ‘Sea Island cotton,’ be protected as trade-marks; could any one prevent all others from using them, or from selling articles produced in the districts they describe under those appellations, it would greatly embarrass trade, and secure exclusive rights to individuals in that which is the common right of many.” A geographical and an historical name, under the trade-mark law, is known as a weak or non-exclusive mark. See 3 Callmann, Unfair Competition and Trade-Marks, Page 1121. “Generally speaking, trade-marks in a geographical name are narrow in scope.” Borg-Warner Corp. v. York-Shiply, Inc., (CCA 7,1961) 293 F.2d 88, 91. In North American Aircoach Systems v. North American Aviation, Inc., 231 F.2d 205, 210, (CCA 9, 1955) the court observed: “It is extremely difficult to give to a geographical term a proprietary connotation since under ordinary ■circumstances it cannot be used to exclude others who operate in the same area * * In the case of France Milling Co. v. Washburn Crosley Co., (CCA 2, 1925) 7 F.2d 304, the court was ruling on the use of the words “Gold Medal,” and stated at page 306: “To take another view of the matter, the degree or exclusiveness of appropriation accorded to the originator of a trade-name often varies with the kind of name he originates. If the name or mark be truly arbitrary, strange, and fanciful, it is more specially and peculiarly significant and suggestive of one man’s goods, than when it is frequently used by many and in many differing kinds of business.” Clearly, “Cadillac” does not fall under the category of “arbitrary, strange, or fanciful.” Further discussion of “strong” and “weak” marks appears in Treager v. Gordon-Allen, Ltd., (CCA 9, 1934) 71 F.2d 766, 767; American Steel Foundries v. Robertson, 269 U.S. 372, 46 S.Ct. 160, 70 L.Ed. 317; Majestic Mfg. Co. v. Majestic Elec. Appl. Co., Inc., (CCA 6,1949) 172 F.2d 862; Dwinell-Wright Co. v. National Fruit Co., (CCA 1, 1944) 140 F.2d 618; and Olin Mathieson Chemical Corp. v. Western States Cutlery & Mfg. Co., (C.C.A. 10, 1955) 227 F.2d 729. Since “Cadillac” is both an historical and a geographical term, it is only entitled to very narrow protection, and plaintiff cannot claim the right to exclusive use. Plaintiff, however, has acquired a right to secondary meaning in the trade-mark “Cadillac” in the automotive field. Concerning secondary meaning, it has been said: “It contemplates that a word or phrase originally, and in that sense primarily, incapable of exclusive appropriation with reference to an article on the market, because geographically or otherwise descriptive, might nevertheless have been used so long and so exclusively by one producer with reference to his article that, in that trade and to that branch of the purchasing public, the word or phrase had come to mean that the article was his product; in other words, had come to be, to them, his trade-mark.” G. & C. Merriam Co. v. Saalfield, (CCA6, 1912) 198 F. 369, at page 373. Thus, it is seen that the appropriation of a geographical or historical term by a second user will be restrained where a secondary meaning has been established, and continued use is likely to create confusion — commercial fraud. How, then, may the existence of secondary meaning be established ? The criteria set forth by such cases as Shaler v. Rite-Way Products Co., (CCA 6, 1939) 107 F.2d 82, and American Products Co. v. American Products Co., (E.D.Mich., 1930) 42 F.2d 488, are simply stated as a combination of elements such as long-term usage, considerable effort and expenditure by the producer toward developing a reputation and good will for the trade-mark, resulting in a conscious connection in the minds of the general public of that trademark to the producer’s particular business and products. An aid to the evaluation of the protection afforded plaintiff is the case of Curtis-Stephens-Embry Co. v. Pro-Tek-Toe Skate Stop Co., (CCA 8, 1952) 199 F.2d 407, at page 414, where it is stated: “The exclusiveness of the monoply of a descriptive mark with an attained secondary meaning given by statutory registration is limited. It is by no means absolute. The extent of the field to which it extends is circumscribed by the nature of goods specified in the registration to which it is to be applied, the kind of business the registrant is engaged in, and the likelihood of confusion. (Citations omitted.) Boi/t the statute and the law of unfair competition confer and protect only the ultimate objective of both — the right to be free from the unfair competition of one who seeks by the use of a similar mark to palm off his products as those of the owner of the trademark.” (Emphasis supplied.) Although the Pro-Tek-Toe court was concerned with a descriptive mark, yet its comments apply with equal force to a weak historical and geographical mark. The Eighth Circuit Court of Appeals in the Pro-Tek-Toe case sustained the trial court in its holding that the secondary meaning doctrine did not apply, since the products involved reached the public through different channels, and, there was no evidence of confusion, mistake, or deception of purchasers. Both courts decided there was no infringement of plaintiff’s trade-mark or rights. This limitation upon the doctrine of secondary meaning was early recognized by the Sixth Circuit Court of Appeals. Judge Denison speaking for the court in G. & C. Merriam Co. v. Saalfield, supra, said: “The alleged trespassing defendant has the right to use the word, because in its primary sense or original sense the word is descriptive; but, owing to the fact that the word has come to mean, to a part of the public, something else, it follows that when the defendant approaches that same part of the public with the bare word, and with nothing else, applied to his goods, he deceives that part of the public, and hence he is required to accompany his use of the bare word with sufficient distinguishing marks normally to prevent the otherwise normally resulting fraud.” Page 373 of 198 F-(Emphasis supplied.) Other courts have recognized the same-limitations on otherwise weak marks which have acquired secondary meaning. The District Court in New Hampshire, phrased it this way: “The secondary meaning of a name, however, has no legal significance, unless the two parties make or deal in the same kind of goods.” Western Auto Supply Co. v. Western Auto Supply Co., (D.C.N.H., 1936), 13 F.Supp. 525, at page 527. (Emphasis supplied.) From a reading of the cases in-this area of the law, it is patent that the-protection afforded a mark by virtue of the “secondary meaning” doctrine is limited. This limitation is variously described, but it can be stated simply as restricting the protection afforded by the-doctrine to goods of the same, or a closely related class, in the same general consumer market. In the present case, however, plaintiff' seeks a virtual monopoly of the name “Cadillac.” This objective is evidenced; by its attempt, successful in many instances, to dissuade other established businesses from using the name “Cadillac." Plaintiff contends that the fame of the-explorer, Antoine de Mothe Cadillac, and the renown of the City of Cadillac, Michigan, Lake Cadillac, and the use by others-of the name “Cadillac,” over the years, have been inundated by plaintiff’s advertising so that the accumulated consequential force which the secondary meaning gave to plaintiff’s trade-mark now supersedes all else. Plaintiff attempts to enlarge the secondary meaning doctrine so as not only to transform a weak historical and geographical mark into a strong mark, but to extend the doctrine to the degree of converting a limited monopoly for use in the automotive field to a total monopoly in the use of the name “Cadillac.” Plaintiff claims, in effect, that its secondary meaning in the trade-mark “Cadillac” is so strong that no one may use it in any field; this is due to plaintiff’s theory that public confusion automatically follows the use of the trade-mark “Cadillac” upon any other product, no matter how unrelated it may be to Cadillac automobiles. If this Court decided in favor of plaintiff’s theory, plaintiff hereafter would never have to establish its “Cadillac” trade-mark in any given field where plaintiff sought redress against an alleged infringement. Plaintiff simply would be required, under such a holding, to demonstrate the inordinate strength of its trade-mark “Cadillac” in the automotive field. Thus, in effect, this would establish plaintiff’s mark in all fields as to all products, and it would neatly sidestep the limitation on the doctrine of secondary meaning which restricts a limited trademark to goods which are of “substantially of the same descriptive properties as those set forth in such registration,” or use of which “is likely to cause confusion or mistake or to deceive purchasers as to the source of origin.” S. C. Johnson & Son, Inc. v. Johnson (CCA 2), 175 F.2d 176. Plaintiff’s purpose is obvious when we review the testimony of Patrick Henry Murphy, Esquire, an attorney for General Motors. He testified to examples of uses of “Cadillac” as a trade-mark by others, which moved plaintiff to send letters to purported infringers. The products objected to included such diverse items as Go-Karts (Tr. Page 278); key rings (Tr. Page 276) ; dog food (Tr. Page 270); toy cars (Tr. Page 265); water softeners (Tr. Page 281); and jewelry (Tr. Page 256-7). See footnote 9, page 726. Plaintiff asks this court to extend the secondary meaning doctrine far beyond any previously constituted legal concept —to a total monopoly. Such a conclusion would bestow upon a mark which has its only claim to exclusive use arising under the secondary meaning doctrine, an amount of strength far surpassing that afforded to fanciful and aribitrary words. This simply would be an unconscionable encroachment upon public and private rights. Plaintiff’s claims of rights in this case cover too broad an area. While recognizing the vast holdings and varied products of the plaintiff, this Court must also be correspondingly cognizant of the tendency such concentrated power may have toward illegal or oppressive monopolies. This case is a classical example of a monopoly force begetting further monopoly. In the case of California Fruit Growers Exchange v. Sunkist Baking Co., (CCA 7, 1947) 166 F.2d 971, at 973-974, the court found: “Unless ‘Sunkist’ covers everything edible under the sun, we cannot believe that anyone whose I.Q. is high enough to be regarded by the law would ever be confused or would be likely to be confused in the purchase of a loaf of bread branded as ‘Sunkist’ because someone else sold fruits and vegetables under that name. The purchaser is buying bread, not a name. If the plaintiffs sold bread under the name ‘Sunkist,’ that would present a different question; but the plaintiffs do not, and there is no finding that the plaintiffs ever applied the word ‘Sunkist’ to bakery products. “The unconscionable efforts of the plaintiffs to monopolize the food market by the monopoly of the word ‘Sunkist’ on all manner of goods sold in the usual food stores should not be sanctioned by the courts. The trade marks should be confined substantially to the articles for which they were authorized, otherwise, why limit the marks at all?” (Emphasis supplied.) No one whose “I.Q. is high enough to be regarded by the law would be likely to be confused” in the purchase of a boat of the defendant branded “Cadillac” because General Motors sold automobiles under the same name. Certainly, granting plaintiff the holding it seeks in this ease would extend the legal monopoly of the registered trademark far beyond that which General Motors is entitled to under the Lanham Act, or under common law. This court finds as a matter of fact and of law that General Motors’ claim to the ■name “Cadillac” to the exclusion of practically all others extends beyond that which is its due under the law, in justice, or in equity and good conscience. This court relies very strongly throughout this opinion upon the Johnson cases, the decision of Judge Learned Hand in the case of S. C. Johnson & Son, Inc. v. Johnson (CCA 2), supra, and the opinion of Judge Thomas F. McAllister in the case of S. C. Johnson & Son, Inc. v. Johnson, (CCA 6, 1959) 266 F.2d 129. Title 15 U.S.C. § 1051 et seq., the Lan-ham Act, provides that an owner must file a written, verified application in the Patent Office, in which he must specify the mark and the goods on which the mark is to be used, as well as the mode and manner in which the mark is to be used in connection with the goods. All of these requirements must be met in order to secure a registered trade-mark under the Lanham Act. Subsequently, Title 15 U.S.C. § 1057 orders that the Patent Office must state on the certificate of registration the particular goods for which it is being registered. This statutory mandate is not an empty formality. The limitation of the application is a factor to be considered in trade-mark infringement litigation. Judge Thomas F. McAllister in S. C. Johnson & Son, Inc. v. Johnson (CCA 6), supra, 266 F.2d at pages 136-137, quoted with approval from the case of California Fruit Growers Exchange v. Sunkist Baking Co., supra: “The trade-marks should be confined substantially to the articles for which they were authorized, otherwise, why limit the marks at all? Before a trade-mark can be granted under the applicable Lanham Act, the application therefor must name the products to which it is to apply.” In the Johnson case (CCA 2), supra, 175 F.2d pages 178, 179 and 180, Judge Learned Hand explained why the trademark act was amended in 1905 and 1946. Pie commented: “The law of trade-marks, which is in any event only a part of the law of unfair competition, was originally designed to protect the mark’s owner from the diversion of customers who would otherwise have bought of him.” By 1905 the trade-mark law had been extended to cover goods on which the owner had never used the mark. Judge Hand then discussed decided cases before 1905 in which the Federal Courts had extended the doctrine to cover such goods, and made the following pertinent comment in the Johnson case (CCA 2), supra: “It will be observed that in all these cases the sales held to infringe were of goods which were ‘substantially of the same descriptive properties as those set forth in the registration’; and that on the occasion when that was not true, the owner of the mark failed.” (175 F.2d page 179.) (Emphasis supplied.) It is a reasonable inference according to Judge Hand, that the 1905 language of the Act, supra, intended “rights” thus conferred would be co-extensive with those recognized by then prevailing law of unfair competition. He further found that after the 1905 amendment the Circuit Court of Appeals for the Second Circuit extended the trade-mark act’s umbrella of protection in the case of Aunt Jemima Mills Co. v. Rigney & Co., (CCA 2, 1917) 247 F. 407, L.R.A.1918C, 1039. Judge Hand concluded (in the Johnson -case, supra) that in the Lanham Act, Congress wished to do no more than clear up the doubt which had arisen by reason of decided cases, such as Aunt Jemima, apparently extending the doctrine of the 1905 Act’s protection, so as to make the ■protection of the new right, under the Act of 1946, co-extensive with the law of unfair competition as it was in 1946. “Besides, not only is this a sufficient reason for the change, but there is the strongest possible reason for not reading the language literally, because to do so would frequently result in a great hardship to others, and give to the first user of a mark a wholly unjustified poiver to preempt new markets.” (Emphasis supplied.) The change of language in the Lanham Act leads the court directly to the question of whether it totally abolished the previous criterion, that infringement may only occur where the competing goods are “substantially of the same descriptive properties as those set forth in such registration.” Or, phrased another way, is the fact that a product is likely to cause confusion, or mistake, or to deceive purchasers as to the source of origin of such goods and services, as provided by the Lanham Act, alone enough to sustain an action by the owner of a mark? As Judge Learned Hand held in the Johnson case (CCA 2), supra, 175 F.2d at page 180: “[It] is far from true that the mere fact of confusion between the two users should always and of itself tip the scales in favor of the first. (Citations omitted.) [We] tried to show how the power of a first user to establish such a premonitory lien upon a future market might lead to great injustice. In deciding such ‘interstitial’ issues, which legislcu-tures at times wisely leave to them, courts are obliged to take over their function pro hac vice and to decide which of the conflicting interests they think should prevail.” (Emphasis supplied.) In 1962, Section 1114 of the Trade-Mark Act was again amended. Likewise, Congress did not intend the 1962 amendment to eliminate defendant’s use of the name “Cadillac” for the reasons hereinbefore and hereinafter stated. Congress could not have intended to grant any owner of a geographical trademark, which has acquired secondary meaning, the right to a total monopoly. As late as April 1946, it was doubtful whether a geographical name in common use could be registered as a trade-mark. See Application of Westgate Sea Products Co., (April 1, 1946) 154 F.2d 1010, 33 CCPA 1258; In re Canada Dry Ginger Ale, Inc., (CCPA, December 21, 1936) 86 F.2d 830, which reviewed and rejected the In re Plymouth Motor Corporation doctrine (CCPA, January 12, 1931), 46 F.2d 211. The conflicting interests between users of a geographical, historical or a family name, or otherwise weak marks, must be decided pro hac vice or ad hoc by weighing the equities in each case. If Congress intended to clothe weak trade-marks with the strength of arbitrary, fanciful marks, it could have expressed itself in plain, simple language to that end. The first use of a trade-mark of a specific common name does not, by and of itself, give the first user the right to prevent a subsequent “fair use” of the identical name by others on different articles. Richfield Oil Corp. v. Dieterich Field, Inc., (C.C.P.A., 1960) 279 F.2d 885, 886. The issue was properly presented in the case of the Federal Telephone & Radio Corp. v. Federal Television Corp., (CCA 2, 1950) 180 F.2d 250, where Judge Learned Hand stated at Page 251: “Although there appears to be a persistent belief that the first use of a specific name or description gives a power to the first user to prevent its use by others, it is important to remember that no such doctrine exists. In all such cases there is only one question: what damage to the first user ioill the second do by the use of the first user’s mark, or name or make-up, and what burden will it impose upon the second user effectively to distinguish the goods? “It is enough to dispose of the case at bar that the plaintiff failed to shoiu that either of the two interests which we have just mentioned will be endangered by defendant’s use of the word. ‘Federal.’ ” (Emphasis supplied.) Plaintiff here sustained no damage, loss of sales, profit, prestige, or injury to its good will; its name or reputation was not tarnished in any way by activities of the defendant Cadillac Marine & Boat Co. The testimony of Mr. Harold G. Warner, Vice President of General Motors and General Manager of Cadillac Division, and Mr. John A. Dunn, General Parts and Accessories Manager, Cadillac Motor Car Division, compels the court to-reach this conclusion. Mr. Halliday, counsel for plaintiff, attempted to establish that the issue ■of loss of profits is irrelevant as a matter ■of law and not a condition precedent to the granting of relief to the plaintiff. However, it is an element to be considered by the court in determining whether the plaintiff has succeeded in establishing its case. Judge Learned Hand in Federal Telephone and Radio Corp. v. Federal Television Corp., supra, 180 F.2d at page 251, teaches: “As for retailers and their customers, it is conceivable that the word, ‘Federal,’ may lead them to believe that the defendant’s television sets come from the plaintiff, and that, if the defendant’s reputation ■becomes unsavory, the blame may be put on the plaintiff. However, there is so far no evidence of this, and we should have no warrant for depriving the defendant of whatever goodwill it has already acquired by its sales under its own name. It started the user in entire good faith, the word is in general use for all sorts of purposes, and the plaintiff’s pretension to monopolize it is without any present basis that we can discover.” We have heretofore seen that the law of trade-marks was originally designed to protect the mark owner from the diversion of customers who otherwise would have purchased from him. Judge Hand further found in the Johnson case (CCA 2), supra, that the “Aunt Jemima” doctrine recognized only two interests on which the owner can stand; “(1) the possibility that the trade practices of the second user may stain the owner’s reputation in the minds of his customers; and (2) the possibility that some time in the future he may wish to extend his business into that market which the second user has begun to exploit.” Then, later, 175 F.2d at page 180: “The plaintiff does not sell cleaning fluid; it makes waxes and other polishes, and the defendants cannot possibly turn away from it any customers who would buy these instead of cleaning fluids.” In the instant case, plaintiff does not sell boats such as those which are manufactured by the defendant, and defendant cannot possibly turn away from plaintiff any customers who would buy boats instead of Cadillac automobiles. While competition is not sine qua non as dispositive of the issues involved in this case, it is an element, and an important element, together with the other elements considered by the court in determining whether or not there is in fact a probability of confusion, insofar as the actual purchaser of either Cadillac automobiles or defendant’s boats are concerned. This court now considers additional compelling evidence relevant to the important element of competition. On April 25,1956, plaintiff, through its Vice President, Charles A. Chayne, filed its sworn notice of opposition to defendant’s application for a trade-mark. This court finds that the plaintiff’s allegations in its notice of opposition to defendant’s trade-mark application, and the inferences which plaintiff intended should be drawn from the allegations, insofar as plaintiff’s trade-mark relates to the boating industry are contrary to the facts and the findings of this court in this opinion. This court particularly finds that plaintiff’s allegation number 8, on page 2 of its notice of opposition, is untrue. Plaintiff there alleged: “The goods on which applicant’s mark is alleged to be applied and the goods on which opposer’s said mark is applied, are of the same descriptive properties, and the origin of applicant’s goods is likely to be confused with the origin of opposer’s goods.” (Emphasis supplied.) Defendant’s small boats and' plaintiff’s Cadillac automobiles and the parts or engines, are not “of the same descriptive properties.” Testimony during the trial by Mr. Dunn and Mr. Warner contradicts the-sworn allegations of plaintiff’s Vice-President, Charles A. Chayne, in plaintiff’s notice of opposition to defendant’s-trade-mark application. They both testified to the effect that plaintiff was not ira the boat business. Mr. Chayne, on May 24, 1958, in answer to defendant’s interrogatories identified John A. Dunn as an officer and employee of plaintiff who had knowledge of the facts alleged in the complaint or specified in preceding answers to the interrogatories and who could testify in regard to such facts. Obviously, from the testimony of Mr. Dunn and Mr. Warner, defendant’s boats are not in actual or substantive competition with any articles manufactured by plaintiff, especially its Cadillac Division. While Cadillac cars and defendant’s Cadillac boats are means for transportation, one on land and one in the water, they do not possess the same descriptive properties. They are substantially different. This differential makes them void of inherent confusing characteristics. Both represent more than a casual investment; neither can be compared with Coca-Cola and Fletcher’s Coca-Cola. Nashville Syrup Co. v. Coca-Cola (CCA 6, 1914), 215 F. 527. Nor can they be compared with creme de menthe and creme de menthe as in Societe Anonyme De La Grande etc. v. Julius Wile Sons & Co., (S.D.N.Y., 1958) 161 F.Supp. 545, a ease in which Judge Irving R. Kaufman found no confusion and no infringement. While there is no fetish in the word “competition”, Vogue Co. v. Thompson-Hudson Co., (CCA 6, 1924) 300 F. 509, at Page 512, there must be a reasonable probability of injury or unfairness to the plaintiff or the public as a result of confusion caused by defendant’s action. This is a factor in determining unfair competition under the common or statutory law, in alleged infringements of weak trade-marks with acquired secondary meanings. Plaintiff also has failed to establish a present intention either at the time of commencement of this action, or at the time of trial, to enter the market occupied by the defendant in its use of the name “Cadillac.” Plaintiff, as a further element of unfair competition, contends that defendant infringed plaintiff’s trade-mark “Cadillac” by using the name to induce purchasers or prospective purchasers to believe that Cadillac Marine & Boat Co.’s goods originate from or in some way are connected with plaintiff. To attempt to show that confusion would arise, and had in fact arisen, the plaintiff conducted a survey of some one hundred fifty individuals. The results were noted upon a sheet in the survey booklet by either the subject or interviewer and later tabulated. The survey was conducted by two college students as part of their summer employment. Upon trial, defendant raised several objections to admission of any of the survey evidence. One of the defendant’s objections was that the survey constituted hearsay, and as such is inadmissible. Historically, this was once an adequate ground upon which to base an objection. (See Elgin National Watch Co. v. Elgin Clock Co., (D.C.Del., 1928) 26 F.2d 376, for this view.) The Federal Courts, however, in a series of similar cases leading from United States v. 88 cases, more or less, containing Bireley’s Orange Beverage, (CCA 3, 1951) 187 F. 2d 967, have granted a “ticket of admission” to evidence presented by surveys despite its hearsay character. The defendant in this case also objected that the survey was taken by untrained people, and that it is irrelevant. Initially, however, it must be stated that such objections go only to the weight, rather than to the admissibility of the evidence. As the court stated in the 1953 case of Rhodes Pharmacal Co. v. Federal Trade Commission, (CCA 7, 1953) 208 F.2d 382, at Page 386: “Theoretically a sound method of ascertaining the meaning of petitioners’ advertisements to the consuming public would be to interview potential customers and ascertain what those ads meant to them. A survey of the attitude of dentists toward a drug preparation was considered by the court in Bristol-Myers Co. v. Federal Trade Commission, 4 Cir., 185 F.2d 58, 60. The government offered a survey of consumer reaction in United States v. 88 Cases, More or Less, Containing Bireley’s, etc., 3 Cir., 187 F.2d 967, 974. The testimony of witnesses drawn from the general public, as to the impressions made upon their minds upon reading the advertisements, was admissible. This procedure of investigation has received the sanction of the courts. Gulf Oil Corp. v. Federal Trade Commission, 5 Cir., 150 F.2d 106, 108; Stanley Laboratories, Inc., v. Federal Trade Commission, 9 Cir., 138 F.2d 388, 391; Ford Motor Co. V. Federal Trade Commission, 6 Cir., 120 F.2d 175, 182. “Obviously the value of a survey depends upon the manner in which it was conducted — whether the techniques used were slanted or fair. * * *» The entire problem is placed in proper perspective by the case of Standard Oil Co. v. Standard Oil Co., (CCA 10, 1958) 252 F.2d 65, 76 A.L.R.2d 600. In that case, 252 F.2d at Page 75, the court had the following to say: “The results of a public recognition survey may properly be received to establish whether trade symbols in question have achieved a degree of public recognition that constitutes secondary meaning and as to whether there is confusing similarity in designations. “The admissibility of the survey evidence is attacked on the ground of hearsay. The persons who conducted the surveys were called as witnesses. Of the persons interviewed, forty-five testified at the trial or by way of deposition. The hearsay objection is not well taken. The persons who did the interviewing testified as to the results of their surveys. Their testimony was offered solely to show what they found. Only the credibility of the'persons who took the statements was involved and they were before the court. The technical adequacy of the surveys was a matter of the weight to be attached to them. Elaborate evidence was received from the defense on this point.” (Footnotes omitted.) The parallel is obvious between the Standard Oil case and the case before this court. Here, as in Standard Oil, there was full testimony taken by deposition from those persons who conducted the survey for the plaintiffs. There was also testimony taken by deposition of a number of the persons among whom the survey had been conducted. Therefore, the final and only question as to the survey in this case is as to what weight should be given to the evidence thus presented by plaintiff General Motors. In attempting to define the probative value of the poll, the first consideration must be directed toward the nature of the tv/o questions which made up the poll. The initial question of the survey is, indeed, as defendant contended upon the trial, productive of unclear or ambiguous answers. One need only leaf through the survey booklets to see an obvious lack of clarity in the responses. There are many instances where the answer to the first question is clearly a hazy, qualified one. Mr. Gale Robinson, in answer to the question, “Who do you think puts out the boat shown on the opposite pages?”, replied, “It says Cadillac on it.” In response to the same question, the next subject replied, “It says Cadillac.” Certainly the advertisement says “Cadillac.” But, Query: is such a statement an answer to the question of who the subject thinks put out the boat? An even better example of the lack of clear results to the question posed is the answer of Mrs. Phyllis Pelikan who responded, “Well, since it says ‘Cadillac,’ I guess it’s Cadillac.” The answer to the question is “Cadillac”; that is, after all, what the advertisement says, but it seems apparent that such qualified answers are not susceptible to a categorization such as plaintiff attempted in summarizing the poll. In fact, there is no clear way to determine what the subjects meant by such answers to the first question; nor does question two abate the confusion. This second question, “Will you please name anything else you think is put out by the same concern ?”, is a classic example of a leading question. If there was any doubt in an individual’s mind as to whether the “Cadillac” he named in response to the first query was the General Motors Cadillac, the second question would very likely be enough to remove that doubt. The question directed an opinion to those who had formed none on the first inquiry. To demonstrate the propensity of the question to lead, an examination of the survey booklets provides many instances where a person who drew a complete blank on the initial question was suddenly reminded of cars and General Motors by the way in which the second question is phrased. This reminder was the product, not of the advertisement, but of the second question itself. One individual said, “I have no idea,” in answer to the first question, yet the second question brought the answer, “car.” Mrs. Seewagen answered as to who she thought manufactured the boats shown, “I don’t know, I don’t know anything about boats.” However, when asked about anything else produced by the firm she could not seconds before identify, her reply was, “car.” Mr. Cisik was led even further. After answering that he did not know in response to the first query; he answered the second by saying, “caskets and cars.” There are many other examples of the same nature contained within the plaintiff’s exhibits. Moreover, the tabulations of the survey shown on the inner pages of the survey booklets and the over-all tabulations submitted by the plaintiff are neither accurate nor truly reflective. To begin with, the second category of answers which is noted on the tabulation sheets is unclear, because it is too broad. This second category totals the number of individuals who mentioned “Cadillac (identified with automobile), General Motors, or equivalent of maker of the cars, motors, engines, or marine engines,” in response to the first question. The opposing, or other category, (besides miscellaneous answers and “I don’t know”) was one which called for those answers which mentioned “Cadillac Marine & Boat Co., Cadillac, Marine or Cadillac boats.” Under these tabulations anyone who merely gave the advertisement a cursory glance would note “Cadillac” as his answer to the survey’s first question. This, after all, was the boldfaced, large script which heads the advertisement. Such an answer, however, does not necessarily reflect the confusion which plaintiff contends consequently arose between Cadillac Division of General Motors and Cadillac Marine & Boat Co. Nor does the tabulation take into consideration the hazy and qualified answers to the first question which have been previously discussed. Instead, these answers were lumped into a category with those which had mentioned General Motors as an equivalent manufacturer. Indeed, in going over the survey booklets, this court finds there were only some thirty-three individuals who, from a reading of both answers to the survey, obviously had confused the two companies as being one and the same. It is also important to note that many of the individuals the court has included in the total of thirty-three were apparently confused only because of the leading character of the second survey question. The fact that the tabulations were not carefully considered is further pointed out in plaintiff’s Exhibit 52A, which is the tabulation page of one of the survey booklets. Here, Page 8 is included in the category of those who answered “Cadillac” to Question one, who also went on to answer, “cars” or “automobiles” to Question two. An examination of the page referred to discloses that what the individual in reality said was, “It’s not General Motors, the car.” (Emphasis supplied.) There are also some key problems which arise due to the way in which the poll was conceived and conducted. In the first place, it is difficult to envision one hundred fifty persons in a single geographical area as an adequate sampling of the United States consumer market for any product, let alone products of such a wide market range as automobiles and boats. Secondly, the type of persons apparently does not represent either a good cross section, nor the correct segment of the public. The correct segment of the public is the likely purchaser or purchasers. This was pointed out in the case of S. C. Johnson & Son, Inc. v. Johnson, (CCA 6, 1959) 266 F.2d 129, at page 138, where Judge McAllister said that the trial court had found the use of the name Johnson on a product: “ * * * was a use ‘likely to cause confusion or mistake or to deceive purchasers as to the source of origin of such goods and services.’ The crucial determination of the trial court was its finding that ap-pellees’ use of the name did not cause, and was not likely to cause confusion or mistake or to deceive purchasers as to the origin of their goods.” (Emphasis supplied.) The individuals among whom this poll was taken were not, in the vast majority of cases, “purchasers” in any sense of the word. Indeed many indicated they had no interest in boats at all. Of necessity, it then follows that their inspection of the proffered advertisement was casual, cursory and careless. The best example of this comes in the testimony of Mr. MeLoone, who on cross-examination by defendant’s attorney admitted, “I just looked at the pictures and bold print.” That this goes to the question of the weight and sufficiency of the poll in evidence is well illustrated in the case of Oneida, Ltd. v. National Silver Co., Sup., 25 N.Y.S.2d 271, at Page 286, where the court, in commenting on a poll taken in a similar case, said: “The weight and sufficiency of this evidence is another question. * * The inspection must have been in the main casual, and not with that degree of attention that would be given in the case of an ordinary purchase. * * * The results * * * were * * * in my opinion, inconclusive ; and I do not attach weight to this part of the evidence.” (Emphasis supplied.) A further connected problem is inherent with the material used to conduct the poll. Actual purchasers of a boat would not hastily read an advertisement, nor would a potential purchaser read it carelessly. A reasonable man, anticipating the purchase of a boat, would peruse the material at least well enough to note the manufacturer as being “Cadillac Marine & Boat Company, 406 Seventh Street, Cadillac, Michigan.” Also, most buyers would want to see the boat itself before making a purchase. The question may fairly be asked, what is a proper way to conduct such a survey ? Perhaps the query might best be answered by quoting Judge Kennedy in Standard Oil Co. v. Standard Oil Co., 141 F.Supp. 876 (D.C.Wyo., 1956) where he said: “We know of no fixed formula which has been generally recognized as a standard for conducting surveys in an attempt to ascertain public opinion. It has been quite generally used in the political field through what is known as the ‘Gallup’ polls and by what is called scientific polling of public opinion. There is no sufficient ground, however, to say that one system of polling in a particular field would be as effective as some other method in a different field.” (At Page 887, of 141 F.Supp.) In essence then, there appears to be no formula, other than a look at all the factors involved, by which to determine the sufficiency and worth of a poll such as the one presented