WISDOM, Circuit Judge:
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, 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.
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 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 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.
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?
Falcon argues first that the district court misconstrued this case as one involving only trademark, not trade dress.
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
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 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.
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.
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. 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.
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 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.
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.
"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
Kellogg Co. v. National Biscuit Co., 1938, 305 U.S. 111, 122, 59 S.Ct. 109, 115, 83 L.Ed. 73, 80.
The judgment is AFFIRMED.
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).
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.