Kellogg Co. V. National Biscuit Case Summary

Kellogg Co. v. National Biscuit Co., 305 U.S. 111 (1938), "National Biscuit sued Kellogg over the manufacture and sale of a breakfast cereal known as shredded wheat. Shredded wheat was first introduced in 1893 and then again in 1905 when a the inventor tried to trademark it and it was denied. National Biscuit years later acquired the rights to shredded wheat inventor business and eventual got a shredded wheat patent issued that eventually expired in 1912. Some ten years later in 1922 Kellogg started marketing their own version of shredded wheat in the same shape as Nation Biscuit. National Biscuit filed a lawsuit and the court ruled that Kellogg will not use the name shredded wheat and that they will not advertise or sell the pillow shaped

product that National Biscuit used to make their shredded wheat biscuits. Kellogg then filed a petition with the United States Supreme Court who held that there was no deception on Kellogg behalf and that they did not have to refrain from using the name shredded wheat because they was adding milk in a bowl and that the name was not protected by patent or trademark.

National Biscuit petition the Federal court against Kellogg on the basis of unfair competition by manufacturing and sales of breakfast food named shredded wheat. In 1935 courts dismissed the conflict, because shredded wheat was patent but the expiration of Perky patent No. 548,086, issued October 15, 1895 and the name patent article passed into the public domain.  That information was verified by the Circuit of Appeals in 1936 which end up reversing the Court original decision on Kellogg not being able use the name Shredded Wheat as a tradename or advertising or trying to sale it as a product. The Court had stated earlier in a ruling that Kellogg had violated patent trademark and was in the process of having them pay for punitive damages and profits to National Biscuits. National Biscuit has no exclusive right to the use of the "Shredded Wheat" as a tradename. Shredded wheat is the generic name of the article, which describes it with a fair degree of accuracy, and is the name by which the biscuit in pillow-shaped form is generally known by the

public. Since the name is generic, the original maker of the product acquired no exclusive right to use it. Kellogg had the right to make the product and it also had the right to use the name by which the public knows as shredded wheat. Any machinery that process to make the product shredded wheat has been dedicated to the public and the basic patent for the issue to Perky expired October 15, 1912 and if Kellogg came upon the expiration of the patents right name, that right was lost by delay. Since National Biscuit mention fairness, the courts ruled Kellogg must sell fifteen biscuits and National sell twelve, the biscuits will be different in size, form or color and labels on box will be different. Kellogg has bold scripts with the name “Kellogg’s Whole Wheat Biscuit” or “Kellogg’s.” The question still remain is did Kellogg violate the two biscuit in a dish trademark? The courts stated there may be doubt, however anything concerning two biscuits in a dish and its trade mark they will not revisit or mandate, because the ultimate issue was the tradename shredded wheat and the pillow-shape form biscuits and as long as both the defendant and plaintiff are not misleading in selling the product there was no need there was no need to address that question.”