Avalon Hill Co. v. Gebhardt

Henderson, J., delivered the opinion of the Court. This appeal is from an order dismissing, after full hearing and extended testimony, a bill for an injunction and accounting against a competitor marketing a game involving the Battle of Gettysburg. The appellant contends that the box lid of the game of the defendant-appellee, known as “Change-it”, is so similar to that of its game, known as “Gettysburg”, “as probably to confuse the ordinary, casual purchaser.” We may note at the outset that the appellant does not claim ⁵⁴ here and did not claim below that it acquired or could acquire any exclusive property rights in the name of the famous Battle or in the colors blue and gray, which because of the battle uniforms of the respective sides are symbolic of the historic struggle. These are matters in the public domain.

Manifestly, any game utilizing the subject matter of the Battle would be in competition with a similar game first in the field and create at least a possibility of confusion. It does not follow that the competition could be enjoined for that reason alone. See Drive It Yourself Co. v. North, 148 Md. 609 , Hecht Co. v. Rosenberg, 165 Md. 116 , Edmondson Village Theatre v. Einbinder, 208 Md. 38 , National Shoe Stores Co. v. National Shoes of New York, Inc., 213 Md. 328, and A. & H. Transportation, Inc. v. Save Way Stations, Inc., 214 Md. 325 . The chancellor found as a fact that the defendant’s box lid was “not similar in color, style and design to the Complainant’s box lid.” We cannot say that he was clearly wrong.

It is obvious at a glance that the design is different, and the name of the games is different. Each lid has on it in plain letters the names of the respective makers. The defendant’s game is very much simpler to play and originally sold for a lower price. Aside from the basic similarity of the subject matter, there is nothing to show a likelihood of confusion.

Nor was there any clear evidence that the public was in fact deceived. The witness Scarburgh testified that when he first saw the defendant’s game on display, he thought it was a simpler revision of the Avalon game but did not buy it because he realized, upon examination, that it was not put out by Avalon. The witness Bard testified that he saw the Gebhardt game on display and thought it was the Avalon game. But he did not inspect the game, merely observing it from a distance without intending to purchase it.

There was no other testimony as to actual confusion. The appellant contends, however, that even in the absence of proof of actual confusion, the name “Gettysburg”, as applied to its game, had acquired a secondary meaning. What seems to be the principal evidence in support of the claim consists in proof of rather extensive advertising