(dissenting in part).
• I do not agree with my colleagues as to the unfair competition aspect of this case. My reasons follow.
1. I happen to think that the judge-made trade-name doctrines should be reevaluated in the light of competent research showing their practical social consequences on consumers,1 and that, until then, the courts should not extend those doctrines to foster expanded trade-name monopolies.2 But I also think that judicial attitudes, for or against the extension of those doctrines, •should not now affect judgment in a case, like this, which presents no doctrinal novelties.
2. Here there were two conventional but crucial issues: (a) Did plaintiff establish a secondary meaning? (b) If so, did defendant’s conduct create a likelihood of confusion? Yet on neither of these issues did the trial judge make a finding.
My colleagues seek to supply the first finding by citing Lucien Lelong, Inc. v. Lander Co., 2 Cir., 164 F.2d 395. There the trial court, without in any way intimating that the plaintiff had established a secondary meaning in the kind of bottle sold by defendant, expressly found an absence of likelihood of deception, and dismissed plaintiff’s action; on those facts we said: “True, the court did not include the ultimate finding that there was no secondary meaning established; but the absence of an affirmative finding for the plaintiff is adequate basis for the judgment.”
The situation here markedly differs: Judge Hincks here disclaimed any finding, one way or the other, as to secondary meaning. His entire opinion reads as follows: “On the issues raised by the charge of patent infringement, it seems to me that my indicated conclusions are too plainly required to warrant further discussion. On the issue of unfair competition the question, I think, is closer. The defendant protests that in its accused product it was
*856merely putting greater emphasis on a modern trend toward functionalism. The defendant also contends that the large dial and plain numerals of its accused model which make for easy reading is also in aid of functionalism. But the fact is that the dial of the accused model, which closely approximates that of the plaintiff’s patented product in size, is appreciably smaller than the defendant’s ‘Daybreak’ model which was superseded by the accused model. This change in connection with the other obvious similarities of the accused model of the defendant’s product does indeed constitute some evidence that the defendant copied plaintiff’s design. But even if it did copy, it does not follow that the defendant acted tortiously. The case here comes within the rule of Crescent Tool Co. v. Kilborn & Bishop Co., 2 Cir., 247 F. 299. For here, the defendant by its marks on the product and package made it sufficiently clear to the purchasing public that its product was its own. I cannot agree that the plaintiff’s lavish indulgence in advertising unaccompanied (because of wartime restrictions) with production brings the case within the rule of Shredded Wheat Co. v. Humphrey Cornell Co., 2 Cir., 250 F. 960.” In his formal findings of fact and conclusions of law, the judge said: “14. The essentials of the Dreyfuss design [plaintiff’s design] are embodied in the accused clocks of the defendant, exemplified by Exhibits C and H. 15. At the time of the adoption by plaintiff of the patented design for its Big Ben clocks the plaintiff and defendant were manufacturing and selling alarm clocks of designs having substantial similarity to each other but substantial differences from the patented design. The manufacture of this earlier model was not resumed by the defendant when wartime regulations permitted; instead, it then introduced the accused product, Model 30, described in Paragraph 9 above. 16. The record herein contains no direct evidence that the pub-lie has been deceived or confused as to the defendant’s product or its source. And on the whole the evidence does not warrant an inference of deception or confusion. * * * If said patent be valid, it is infringed' (Finding 14).”
I interpret this quoted language of the judge to mean the following; (1) As distinguished from the patent question, that of unfair competition is not at all open and shut. (2) There is evidence that defendant copied plaintiff’s clocks so closely, despite the variations in defendant’s designs, that defendant, had it not differentiated its products by its distinctive marks on its clocks and packages,3 would have been liable, if plaintiff had created a secondary meaning. (3) But (says Judge Hincks in effect) there is no need to consider whether plaintiff established a secondary meaning because, even assuming that it did, the defendant’s distinctive trade-mark has the result that “an inference of deception or confusion” is unwarranted. In other words, I think the trial judge’s findings here, unlike those in the Luden Lelong case, cannot fairly be construed as negativing the existence of a secondary meaning.
The judge thus rested his decision solely on his finding that, due to defendant’s mark on its clocks and boxes, no actual confusion has occurred. But it is well-settled that absence of actual confusion is not enough. There must be more, i. e.y an absence of likelihood of confusion. The trial judge made no finding to that effect. And, on the record evidence, I cannot believe he could reasonably have so found. For, as myself a not infrequent buyer of that kind of clock, I have seen the clocks displayed outside the boxes, have paid no attention to the manner in which the clocks or boxes were marked, and have been guided exclusively by the clocks’ appearance.4
I would therefore hold that, if plaintiff has created a secondary meaning, it should *857■win. Accordingly, I would remand for an essential finding (which the trial judge avoided) on the issue of secondary meaning, and would direct that, if the judge should find that it has been proved, he should enter judgment for plaintiff.
See concurring opinion in Standard Brands v. Smidler, 2 Cir., 151 F.2d 34. Consider also what Judge Learned Hand said in 1918: “The art of advertising spuriously reinforced a genuine demand by the power of reiterated suggestion. * * ” When “one has for a long time bought from a single source some article that one likes, either through conscious reflection or mere conservative habit, one is apt to impute to its source a part of its putative value.” It “is almost inevitable that they [the public] should come, to.assoeiate some of the supposed merit of a successful article * * * with the supposed Uniformity and reliability ■ of its manufacture.” Shredded Wheat Co. v. Humphrey Cornell Co., 2 Cir., 250 E. 960, •962..
See Standard Brands v. Smidler, •supra.
“Under the guise of protecting against -unfair competition, we must be zealous not to create perpetual monopolies.” Shredded Wheat Co. v. Humphrey Cornell Co., supra.
The judge found that “defendant’s clocks carry its trade-name ‘Waterbury’ on the face and defendant’s monogram plainly stamped on the base”; that defendant’s clocks have been “packaged in an individual box conspicuously bearing the trade-mark ‘Waterbury’ on the sides and on the top”; and that “within the box is a guarantee leaflet and a price-tag, both of which repeatedly show the trade-mark ‘Waterbury’ and the name of the defendant.”
Absent evidence of actual confusion, a determination of likelihood of confusion must come from judicial notice. In invoking judicial notice in this field, a judge’s personal reactions may serve as some guide to the reactions of others. .