(dissenting).
While I agree that appellees should be required to strike the word “Brand” from their labels, I am also of the opinion that this relief is not broad enough.
It is clear to me that in the coloring, lettering and general format of their label, appellees deliberately contrived to simulate the general appearance of appellants’ label and thus subtly create the impression upon the ordinary, casual shopper that their blackberry wine is produced by the same firm which produces “Bama” blackberry *840jam, jelly, and other products marketed in glass jars by appellants.
The label used by appellees is calculated’ to, and has, misled substantial numbers of shoppers, of which there is convincing proof. A visual comparison of the two labels confirms their tendency to confuse.The ordinary shopper identifies a product by the color and general appearance of its label, as well as by prominent words, symbols or pictures thereon, not by the fine print at the bottom of the label. Such a shopper would be easily misled by appel-lees’ label into thinking he was buying appellants’ product. He would not only see the word “Bama” prominently displayed on both, but the style of lettering, the coloring and general appearance of the two labels are too similar to be the result of mere coincidence.
Thus, appellees not only confuse the public, but unjustifiably appropriate to themselves a share of appellants’ good will and reputation, built up over years of dealing with the public. They also gain an unjust advantage from the thousands of dollars of advertising money spent by appellants in acquainting the public, not only with the trade-mark “Bama,” but also with the general appearance of their label as well.
While I agree that the trade-mark “Bama” is perhaps a weak one, even when registered, I also think that a clear case of unfair competition is made out by this evidence, and that for the benefit of both the public and appellants, appellees should be enjoined from the use of their present label, which is clearly confusing. Even if appellees are entitled to use “Bama” on their blackberry wine, they could, and should, devise a label more readily distinguishable from that used by appellants on their blackberry jams and jellies, which use long antedated appellees’ label.
I therefore concur in the order of modification, but dissent from the judgment of affirmance.
Rehearing denied; STRUM, Circuit Judge, dissenting.