opinion: GENERAL BAKING CO. v. GOLDBLATT BROS., Inc.
  No. 6133.
  Circuit Court of Appeals, Seventh Circuit.
  May 20, 1937.
  Rehearing Denied June 18, 1937.
  . , ,, Lee Gary’ of Chlcag°> HI. (F- PWarfidd and T_ R> v> FikC( both of New York City, of counsel), for appellant.
  Jack N. Pritzker and Stanford Clinton, both of Chicago, 111., for appellee.
  Before EVANS and MAJOR, Circuit Judges* and LINDLEY, District Judge,
  LINDLEY, District Judge,
  This is an appeal from a decree dismissing for want of equity a bill charging appellee with infringement of appellant’s registered trade-mark.
  Appellant in 1915 adopted and appropnated the word Bond” as its trade-mark applied to bread and bakery products, This and subsequent applications passed to registration and the resulting trade-marks are now in full force^ During the years between 1915 and 1935 appellant has used the mark on four billion loaves of bread sold in twenty-five states. It has sold in Illinois upwards of five million loaves within the territory within a radius of fifty miles of St. Louis. Appellant learned in September, 1935, that appellee was selling “Goldblatfs Bond” bread and thereupon made written demand upon appellee to discontinue the use of the word «Bond.” Upon refusal the suit was be m_
  . Appellee operates six large department ®^ores m Chicago, one m Joliet, one m Hammond, and one m Gary. It first used the trade-mark Goldblatt s Bond in 1931 on razor blades, shaving cream, and cigars. Thereafter it extended the use to some 300 items of merchandise sold by its stores. It does not sell outside the territory within a radius of fifty miles of Chicago. The parties are not now nor have they ever been in actual market competition. Appellant is not and never has been selling “Bond” bread in Chicago or in any market jn competition with appellee. Its officers testified that the company desired to sell jn Chicago but that no steps had been taken to initiate or develop its business in any section where appellee’s bread is sold. Appellant’s nearest market to appellee’s stores in Indiana is Tipton and its market in Illinois nearest to Chicago is Alton near St. Louis.'
  The wraoners which appellant uses for its “Bond” bread are different in material, design, color, lettering, and descriptive language from those employed by appellee for its “Goldblatt’s Bond” bread.
  The court concluded that the trademarks “Bond” and “Goldblatt’s Bond” are not confusingly similar; that there would be no probability of confusion by purchasers if breads bearing those two marks were concurrently sold in the same markets; that the localities in which appellee sells “Goldblatt’s Bond” bread in Illinois and Indiana are wholly separate and remote from the markets in Illinois and in Indiana in which appellant sells “Bond” bread.
  Appellant contends that the court erred, in finding that the trade-marks “Bond” and “Goldblatt’s Bond” are not confusingly similar and in holding that appellant has acquired no rights to enforce its trademark in the territory where appellee sells its tea .
  The purpose of a trade-mark is to identify the business in connection with which it is used. ° It will be protected only when used in connection with a business, for trade-marks and the rights to their exclusive use are property rights only in the sense that the right to one’s trade and the good will that follows from it free from unwarranted interference by others is a property right. A trade-mark is an instrumentality for the protection of such property right, and the right grows out of its use m trade, not merely out of its adoption. Hanover Star Milling Co. v. Metcalf, 240 U.S. 403, 36 S.Ct. 357, 60 L.Ed. 713; United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90, 39 S.Ct. 48, 63 L. Ed. 141. Consequently it is generally recognized that protection of a trade-mark has territorial limitations coincident with the limitations of the trade which it is presumed to protect. In markets to which the use of the trade-mark has extended and in which its meaning has become known, the manufacturer whose trade is pirated by infringing use will be entitled to protection and redress. But his monopoly does not extend to markets that his trade has never reached, where the mark signifies not his goods but those of another, . for, in the end, it is the trade and not the mark that is to be protected. The trademark itself knows, no territory or boundary but extends to all markets where the trade which it is supposed to protect exists but the mark of itself cannot travel to markets where there is no article to wear the badge and no trader to offer the article. Hanover Star Milling Co. v. Metcalf, supra.
  Where two parties independently employ the same markings upon goods of the same class but in separate markets wholly remote the one from the other, there is no question of prior appropriation. Thus the Supreme Court said in United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90, 39 S.Ct. 48, 51, 63 L.Ed. 141: “ * * * the adoption of a trade-mark does not, at least jn die absence of some valid legislation enacted for the purpose, project the right of protection in advance of the extension of the trade, or operate as a claim of territorial rights over areas into which it thereafter may be deemed desirable to extend the trade.”
  Here ^ evidence indicates clearly that the markets in which appellant sells its bread under the mark “Bond” are wholly remote from the market in which appellee sells its bread under the mark “Goldblatt’s Bond.” Appellant’s market in Illinois covers a radius of about fifty miles in the vicinity of .St. Louis and in Indiana fifty to seventy-five miles in the vicinity of Indianapolis. No part of appellant’s trade reaches the Chicago territory occupied by appellee.
  We condude) therefore, that the District Court was correct in its decision that, under the existing facts, appellant has no right t0 comPlain of appellee in a territory nQ^ occupied by appellant.
  is said that appellant is desirous of entering the Chicago field, but the testimony is that it has made no definite plans t0 do so> bas taken no.steps, entered into n0 contracts, made no investments, or done anything looking toward such extensi°n- What appellant’s rights may be, when and lf su<dl extension of trading occurs’ 15 a question not before us on the Present record.
  In view of our conclusion it is unnecessary to review the evidence upon confusion of marks.
  The decree of the District Court is affirmed.
instruction: What follows is an opinion from a United States Court of Appeals.
  Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
  In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
  To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
  United States of America,
  Plaintiff, Appellant
  v
  International Brotherhood of Widget Workers,AFL-CIO
  Defendant, Appellee.
  International Brotherhood of Widget Workers,AFL-CIO
  Defendants, Cross-appellants
  v
  United States of America.
  Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
  of the Board
  Plaintiff, Appellants,
  v
  United States of America,
  Defendant, Appellee.
  This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
  Your task is to identify the state of the first listed state or local government agency that is an appellant.
choices: not Alabama Alaska Arizona Arkansas California Colorado Connecticut Delaware Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachussets Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada New New New New North North Ohio Oklahoma Oregon Pennsylvania Rhode South South Tennessee Texas Utah Vermont Virginia Washington West Wisconsin Wyoming Virgin Puerto District Guam not Panama