Maurice Talmage, Individually and doing business under the Trade name and style of Debestt Chemical Company

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IN THE Matrer OF MAURICE TALMAGE, INDIVIDUALLY AND DOING BUSI- NESS UNDER THE TRADE NAME AND STYLE OF DEBESTT CHEMICAL COMPANY COlt:PLAINT (SYNOPSIS), FINDINGS, AND ORDER IN REGARD TO THE ALLEGED VIOLATION OF SEC. IS OF AN ACT OF CONGRESS APPROVED SEPT. 28 7 1914 Docket 1818. Oom.plaint, Nrw. 18, 1980-Deol.sio"", Apr. !1, 1931 'Where a chemical entity, the dlsodlnm salt ot dlbromoxymerlcnri-finoresceln, made under patent process, known as "Mercurochrome", and sold, as required by the makers, under said name and the letters "H. W. D.", their initials, and in the form of a 2 per cent solution, had been on the market and been sold to and used by the public as a general antiseptic and first aid prophylactic, and had come to be recognized and identified by medical professl.on and publlc by its aforesaid trade name, letters, and striking natural deep cherry color; and thereafter an lndlvldnal designated as "Mercurochrome H. W. D. 2 per cent solution" a preparation dealt in by him, and described his said product as " Mercurochrome" in circulars, post cards, letters, pamphlets, magazine, newspaper and other advertising, and as "II. W. & D. 2 per cent Solution Dibrom Oxymercuri Fluorescein, General .Antiseptic in place of Iodine"; tact being preparation was a spurious product ot inferior quallty containing little it any genuine mercurochrome, and possessing uttle ot any antiseptic qual1tles; with capacity and tendency to mislead, deceive, and confuse, and inevitable result of misleading and deceiving purchasing public into belief that said product was the genuine, widely known and generally used antiseptic, mercurochrome, and with etrect ot unfairly diverting trade of competitors dealing in the genuine solution, and with capacity and tendency 110 to do: Held, That such practices, under the circumstances set forth, were to the prejudice ot the public and competitors and constitute unfair methods ot competition.

Mr. Richard P. lV Mteley fCYr the Commission. SYNOPsis oF Complaint Reciting its action in the public interest, pursuant to the provisions of the Federal Trade Commission Act, the Commission charged respondent Maurice Talmage, engaged as DeBestt Chemical Co., in the sale of a product represented to be a general antiseptic for use in place of iodine, and with principal office and place of business in Chicago, with appropriating trade name of product of competitor, and advertising falsely or misleadingly as to source of product, in violation of the provisions of section 5 of said act prohibiting the use of unfair methods of competition in interstate commerce in connection with the application of the words "Mer- 76 FEDERAL TRADE OOMMISSION DECISIONS Findings l~F.T.C.

curochrome" and "Mercurochrome H.. ·w. D. 2 per cent solution" to his preparation, not the genuine mercurochrome, the product of Hynson, Westcott & Dunning, made by them for some ten years last past, and so known and identified, with the capacity and tendency to mislead and deceive and inevitable effect of misleading and deceiving the purchasing public, in respect of the nature, origin and identity of the aforesaid product; to the prejudice of the public and respondent's competitors.1 Upon the foregoing complaint, the Commission made the following REPORT, FINDINGS AS TO THE FACTS, AND ORDER Pursuant to 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", the Federal Trade Commission on the 18th day of November, A. D., 1930, issued its complaint against Maurice Talmage, individually and doing business under the trade name and style of DeBestt Chemical Co., respondent above mentioned, and on January 5, 1931, caused the same to be served upon respondent as required by law, in which complaint it is charged that respondent has been and is using unfair methods of competition in interstate commerce in violation of the provisions of section 5 of said act. By notice contained in said complaint, respondent was notified and required within 30 days from aforesaid date of service, unless said time be extended by order of the Commission, to file with the Commission an answer to said complaint; and in said notice respondent was further notified of the provisions of the Commission's Rules of Practice with respect to answer and failure to answer, said provisions being set forth in haec verba in said notice and providing in part as follows (Rule III, subdivision 3) :

8. Fallure ot the respondent to appear or file answer wlthln the time as above provided tor shall be deemed to be an admission ot all allegations ot the complaint and to authorize the Commission to find them to be true and to waive bearing on the charges set torth In the complaint. Respondent has not at any time caused its appearance to be entered in this proceeding, nor has it during said 30-day period specified in said notice, or at any time, made or filed answer to said complaint. It has at no time requested that the time within which it may file answer be extended, nor has the Commission granted any such extension of time.

1Ailegatlona and llndlnga are aubRtantlall7 Identical, the case not huvlng been contested. DEBESTT CHEMICAL CO, 77 75 Findings Thereupon this proceeding came on for final hearing; and the Federal Trade Commission, acting pursuant to said act of Congress and its aforesaid Rules of Practice, having duly considered the record and being fully advised in the premises, makes this its report in writing, stating its findings as to the facts and conclusion drawn therefrom:

FINDINGS AS TO THE FAU1'8 PARAGRAPH 1. Respondent Maurice Talmage is an individual doing business as DeBestt Chemical Co., with his principal office and place of business in the city of Chicago, State of Illinois. Said respondent is now and for more than one year last past has been engaged in the sale and distribution in interstate commerce of a product represented and designated by him as " Mercurochrome II. \V. D. 2 per cent Solution", and further represented and designated as a general antiseptic to be used in place of iodine, which aforesaid product respondent packs and sells in %-ounce bottles, 2 dozen to the carton, and in %-ounce bottles, 1 dozen to the carton, and said respondent has caused said product so designated, represented and described when sold, to be sent from his place of business in the State of Illinois to purchasers thereof, located in a State or States of the United States, other than the State of Illinois. In the course and conduct of his business, respondent is, and was at all times hereinafter referred to, in competition with other individuals, firms, partnerships and corporations likewise engaged in the sale and distribution in interstate commerce of similar products. PAR. 2. For some 10 years last past the chemical entity known as mercurochrome, the disodium salt of dibromoxymercuri-fluorescein, has been on the market and has been sold to and used by the public generally in the form of a 2 per cent aqueous solution (which solution possesses a deep cherry color) for use as a general antiseptic and first aid prophylactic. Both the medical profession and the public have come to recognize and to identify said antiseptic by its trade name, "Mercurochrome", and by the striking color of its solution, which color is not artificially produced. Mercurochrome is produced under a patented process by Hynson, 'Vestcott & Dunning, a pharmaceutical laboratory engaged in the production of bacterial and biochemic therapeutic products, located in Baltimore, Md., and is sold under said trade name with the accompanying initials "H. ·w. D." to indicate its origin. The aforesaid manufacturers of mercurochrome require that said trade name and their initials appear on distributors' labels and that the strength of the solution shall be accurately 2 per cent.

Findings 11) F. T. C PAR. 3. In the course and conduct of his business as described in paragraph 1, hereof, said respondent has caused advertising matter consisting of circulars, post cards, letters, pamphlets and magazine or newspaper or other advertising to be distributed in interstate commerce, in soliciting the sale of and selling his said product, which said advertising matter referred to, or otherwise represented, his product as follows:

Safe, Mercuro- Mercurochrome II. W. & Handy. Use handy apcrome does not ir- D. 2 per cent solution plicator rod attached to ritate, burn, or in- Dlbrom Oxymercuri Flu- stopper for applying so· jure tissues . as OI'esceln. General .Anti- lutlon. Illinois. Iodine does. Chi- septic in place of Iocago • • •. dine. DeBestt Chemical Co.

Special offer on Mercurochrome II.

W. D. 3 per cent SOLUTION. We are in a position to offer Mercurochrome at the lowest price obtainable as we specialize in this item and our large output and big volume of business enables us to undersell";

when in truth and in fact the product sold and distributed as aforesaid by respondent in interstate commerce was not mercurochrome the disodium salt of dibrom-oxymercuri-fl.uorescein, an antiseptic in general use produced under a patented process by Hynson, 'Vestcott & Dunning, of Baltimore, :Md. (H. W. & D.), and was not the H. ,V. & D. 2 per cent solution, but was a spurious product of inferior quality containing little if any mercurochrome, the disoclium salt of dibrom-oxymercuri-fluorescein, the well known general antiseptic widely sold to and used by the public in the form of a 2 per cent aqueous solution.

PAR. 4. The use by respondent of the word " Mercurochrome " and the words " H. ·w. & D. ~ per cent Solution Dibrom Oxymercuri Fluorescein, General Antiseptic in place of Iodine", either independently or in connection or in conjunction with any other word or words to describe the product of respondent in the manner heretofore set out, has the capacity and tendency to mislead and deceive and to confuse and inevitably results in misleading and deceiving the purchasing public into the belief that respondent's said product so designated and advertised is mercurochrome, a widely known and generally used antiseptic and/or that respondent's product is a 2 DEBESTT CHEMICAL CO, 79 75 Order per cent aqueous solution produced from the disodium salt of dibromoxymercuri-fluorescein manufactured by Hynson, "\Vestcott & Dunning (H. W. & D.), when in truth and in fact respondent's product is a spurious product of inferior quality containing little if any mercurochrome, the disodium salt of dibrom-oxymercuri-fluorescein, ancl possessing little if any antiseptic qualities. PAR. 5. There are, among the competitors of respondent mentioned in paragraph 1 hereof, many individuals, partnerships, firms, and corporations who sell and distribute in competition with respondent, and in interstate commerce, mercurochrome, the disodium salt of dibrom-oxymercuri-fluorescein, an antiseptic in general use produced under a patented process by Hynson, Westcott & Dunning, of Baltimore, Md., and who sell and distribute the genuine II. W. & D. 2 per cent solution, and which competitors in nowise :misrepresent the character of said products or solutions. Respondent's acts and practices herein above set forth have the capacity and tendency to and do unfairly divert trade of said competitor. CONCLUSION The aforesaid acts and practices of respondent in the sale and distribution of its so-called "Mercurochrome" as the "H. "\V. D. 2 per cent solution ", under the circumstances and conditions set forth herein, are to the prejudice of the public and of respondent's competitors, and constitute unfair methods of competition within the intent and meaning of section 5 of an act of Congress entitled "An act to create a Federal Trade Commission, to define its powers and duties, and for other purposes", approved September 26, 1914. ORDER TO CEASE AND DESIST This proceeding having been heard by the Federal Trade Com- :rnission upon the record, and the Commission having made its report in which it stated its findings as to the facts and conclusion that respondent, Maurice Talmage, 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 i.9 now ordered, That respondent Maurice Talmage, his agents, representatives, servants and employees, cease and desist in connection with the offering for sale and sale in interstate commerce of socalled antiseptics:

1. From representing that the said so-called antiseptics are " Mercurochrome" unless said products so designated, are made from the disodium salt of dibrom-oxymercuri-fluorescein. Order lll F. T. C. 2. From representing that the said so-called antiseptics are " H. W. D. 2 per cent solution " unless they are a 2 per cent solution of the disodium salt of dibrom-oxymercuri-fluorescein, which salt has been produced in the pharmaceutical laboratories of Hynson, 'Vestcott & Dunning, Baltimore, Md.

It is furtl~er ordered, That respondent Maurice Talmage shall within 30 days after the service upon him of a copy of this order file with the Commission a report in writing setting forth in detail the manner and form in which he has complied with the order to cease and desist hereinbefore set forth.

GRAND RAPIDS UPHOLSTERING CO. 81 Syllabus