Bernstein, Inc., Samuel E

Text (OCR of the scan at left; may contain errors)

IN THE MATI'ER OP' SAl\fiJEL E. BERNSTEIN, INC.

COMPLAINT (SYNOPSIS), FINDINGS, AND ORDER IN REGARD TO THill ALLEGED VIOLA'J.'ION OF SEC. ll OF AN ACT OF CONGRESS APPROVED SEPT. 26, 1914 Docket 1545. Compla,int, Nov. S, 1928-Decision, Jan. 28, 1929 Where silverware made in England bad for many years long since past acquired a very considerable reputation for excellence in quality and come to be favorably, extensively, and distinctively known throughout tbe UnltQd States as a silverware of superior quality and tbe words "English Plate" bad come to Imply and Indicate to the purchasing public thereof that silverware so marked was made in England and was of superior quality; and thereafter a corporation engaged 1n the purchase of domestic !;ilver-plated ware made by the electroplating process, and In the sale thereof to wholesale and retail dealers in competition with manufacturers of plated ware and of solld or sterling silverware accurately and truthfully branded and marked, sold Its aforesaid ware with the words " English Plate " stamped or impressed thereon, and, In smaller letters, the words "Made 1n U. S. A."; with the capacity and tendency to mislead and deceive the purchasing public by inducing the purchase by them of the aforesaid silverware as and tor silverware made in England and of superiqr quality: Held, That the sale of products stamped or branded as above set forth consti· tuted an unfair method of competition.

Mr. William T. Kelley for the Commission.

Eyre, Scott & Keel, o£ Ne~ York City, for respondent. SYNOPSis OF Complaint Reciting its action in the public interest, pursuant to the provisions o£ the Federal Trade Commission Act, the Commission charged respondent, a New York corporation engaged in the sale of silver-plated ware made by the electroplating process, to the wholesale and retail dealers in the various States, and with principal office and place of business in New York City, with misbranding or mislabeling in violation of the provisions of section 5 of such act, prohibiting the use of unfair methods of competition in interstate commerce, in that respondent sold said ware with the words "English Plate" stamped thereon, and in much smaller letters the WOI'ds "Made in U. S. A.," with the effect of misleading and deceiving the purchasing public into believing that the ware so marked was made in England (from which ware marked "English Plate" has long been imported) and is of superior quality, and into Findings 12F. T. C.

purchasing the same in such belief; 1 all to the prejudice of the public and of respondent's competitors, many of whom manufacture andjor sell in interstate commerce plated silverware and/or solid or sterling silverware, accurately and truthfully branded and marked. Upon the foregoing complaint, the Commission made the following Report, FINDINGS As TO THE Facts, AND Onder Pursuant to the provisions of an act of Congress approved September 26, 1914, entitled "An act to create a Federal Trade Commissio:tJ., to define its powers and duties, and for other purposes," the Federal Trade Commission issued and served a complaint upon the respondent, Samuel E. Bernstein, Inc., charging it with the use of unfair methods of competition in commerce in violation of the provisions of said act.

Respondent having entered its appearance and filed its answer herein, stating that it desired to waive hearing on the charges set forth in the complaint and not to contest the proceeding. Thereupon this proceeding came on for decision, and the Federal Trade Commission having duly considered the record and having been fully advised in the premises, now makes this report in writing and states its findings as to the facts as follows: FINDINGS AS TO THE FACTS PARAGRAPH 1. Respondent is a corporation organized under the 'laws of the State of New York, with its,principal office and place of business in the city of New York, in said State. It is engaged in buying silver-plated ware made in the United States and in the sale thel·eof to wholesale and. retail dealers located at points in various • 'lhe complaint contnlns the tollowing allcgnt!ons relative to the manufacture of sllverplatcu w•tle lly the electroplating process, and to English Plate made In Englund and the meaning which bus become attached to the word& "English Plate" In connection with silverware:

Pu. 2. The mnnufacturera of respondent's sliver-plated ware use In the manufacture of same the electroplating proceB8, which Is the covering of a form of base metal with an adherent coating of silver by the electrolysis of silver salts. The plated sllve1·ware thus produced varies In quality nnd value according to tbe composition of the base metal, the workmanship upon Its fornl and the decoration, tl:te amount of fineness of the silver deposited upon It nnd left upon It after the finishing process, and the protection ot the surfaces exposed to wear. 'there Is no fixed standard for the composition of the base metal or for the fineness or quantity of silver to be applied generally or to wearing surfaces, so that the purchasing public Is obliged to depend upon the reputation of the maker of such sllver-plnted wnre, or upon the reputation of the trade name or brand attached tl:ter<'to, or upon the representations of the maker or seller thereof, In purchasing said sliver-plated ware, since the quality of the ware can not be determined except b)' laboratory tests.

PAR. 4. English Plate made In England has for many years long since past acquired a ver)' considerable reputation tor excellence In quality, as a result of which English Plate silverware became favorably, extensively, and distinctly known throughout the United States as sl!nJrware of superior qun.IIty. The words "English Plate." In connection with silverware, Imply and lndlcnte to the purchasing public of thl11 country that allvarwore 110 marked wns made In Englund and Ia of superior quallty. SAMUEL E. BERNSTEIN, INC. 321 319 Findings States of the United States, and causes said ware when so sold to be transported from its said place of business in the city and State of New York into and through other States of the United States to £aij purchasers at their respective points of location. In the course and conduct of its said business respondent is in competition with other corporations, partnerships, and individuals engaged in the manufacture andjor sale and transportation of silver-plated ware and sterling silverware in interstate commerce between and among various States of the United States.

PAR. 2. The manufacturers of respondent's silver-plated ware use in the manufacture of same the electroplating process, which is the covering of a form of base metal with an adherent coating of silver by the electrolysis of silver salts. The plated silverware thus produced varies in quality and value according to the composition of the base metal, the workm::nship upon its form and the decoration, the amount of fineness of the silver deposited upon it and left upon it after the finishing process, and the protection of the surfaces exposed to wear. There is no fixed standard for the composition of the base metal nor for the fineness or quantity of silver to be applied generally or to wearing surfaces, so that the purchasing public is obliged to depend upon the reputation of the maker of such silverplated ware, or upon the reputation of the trade name or brand attached thereto, or upon the representations of the maker Ol' seller thereof, in purchasing said silver-plated ware, since the quality of the ware can not be determined except by laboratory tests. PAR. 3. Respondent in the course of its business, as set forth herein, has for more than one year last past and is now engaged in selling to wholesale and retail dealers located throughout the various States of the United States silver-plated ware stamped or impressed with the words" English Plate,"" Made in U.S. A." The letters forming the words" Made in U. S. A." are smaller than the letters forming the words "English Plate." Such ware carrying the words "English Plate" upon it is ultimately offered for sale in that form to the consuming public.

PAR. 4. Silverware made in England has for many years long since past acquired a very considerable reputation for excellence in quality, as a result of which such silverware became favorably, extensively, and distinctly known throughout the United States as silverware of superior quality. The words "English Plate," in connection with silverware, imply and indicate to the purchasing public of this country that silverware so marked was made in England and is of superior quality.

103133"--3Q--vol12----22 Order 12F. T.C.

PAR. 5. Silverware made in England has been for many years last past and is now imported into the United States. PAR. 6. The use by the respondent of the words " English Plate" in connection with the sale of silver-plated ware, as set out herein, has the capacity and tendency to mislead and deceive the purchasing public by causing them to believe that the plated silverware sold by respondent and stamped " English Plate " was made in England and is of superior quality, and to purchase such plated silverware in that belief.

PAR. 7. There are among the competitors of respondent many who manufacture and sell in interstate commerce plated silverware and solid or sterling silverware accurately and truthfully branded and marked.

CONCLUSION The practices of the said respondent,' under the conditions and circumstances described in the foregoing findings, are to the prejudice of the public and of respondent's competitors and are unfair methods of competition and constitute a violation of the act of Congress approved September 26, 1914, entitled "An act to create a Federal Trade Commission, to define its powers and duties, and for other purposes".

ORDER TO CEASE AND DESIST This proceeding having been heard and considered by the Federal Trade Commission upon the complaint of the Commission and the record, and the Commission having made its findings as to the facts and its conclusion that the respondent has violated the provisions of an act of Congress approved September 26, 1914, entitled "An act to create a Federal Trade Commission, to define its powers and duties, and for other purposes", It is now ordered, That the respondent, Samuel E. Dernstein, Inc., its officers, agents, and employees do cease and desist from the use of the word "English" in the designation of, or in the advertising, branding or labeling of silverware sold and distributed by it in interstate commerce unless said silverware be manufactured in England.

It is fwrther ordered, That the respondent shall within 60 days after the service upon it of a copy of this order, file with the Commission a report in writing setting forth in detail the manner and form in which it has complied with the. order to cease and desist hereinbefore set forth.

OHIO LEATHER CO. 323 Complaint