State v. 28 Containers of Thick & Frosty

(dissenting) — The difficulty with the resolution of the issues in this case by the majority opinion is that the basis for the trial court’s action was its belief as stated in finding of fact No. 9 that

*732in this part of the country, the word “shake” is a colloquialism for “milk shake”, a widely recognized dairy product. General Foods in using the word “shake” on the label of Thick and Frosty is capitalizing on the widespread use of the word “shake” as synonymous with “milk shake” so as to confuse the general public.

An examination of the findings of fact, conclusions of law and the court’s oral…