Metal Tile Construction Co., Inc

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In rue Marrer or METAL TILE CONSTRUCTION COMPANY, INC.

COMPLAINT (SYNOPSIS), FINDINGS, AND ORDER IN REGARD TO THE ALLEGED VIOLATION OF SEC, 5 OF AN ACT OF CONGRESS APPROVED SEPT. 26, 1914. Docket 1955. Complaint, June 1, 1931—Decision, May 81, 1982 Where a corporation engaged {n importing-a Belgian wall and celling covering composed of zine plates so enameled, stamped, and made as to imitate different colors, and mortar lines of genuine tile, and exact appearance thereof installed in place, and in sale -of said product to jobbers, contractors, builders, and public generally, described same as “ Belgian Tile” or “ Belgiantile”’ in advertisements in periodicals of national circulation, and in catalogues, circulars, leaflets, etc., circulated among trade and general public; with tendency and capacity to deceive purchasers into believing said product to be that kiln baked, clay tile installed and set by tile setters, and generally understood from the word, and to divert to it trade of competitors engaged in sale of genuine imported Belgian, or domestic tile, as the case might be:

Held, That such practices, under the circumstances set forth, were to the prejudice of the public and competitors and constituted unfair methods of competition.

Mr. Alfred M. Craven and Mr, J. Butler Walsh for the Commission.

Mr. Max Wittenberg, of Brooklyn, N. Y., for respondent. Mr. Sol A. Herzog, of New York City, for Associated Tile Manufacturers, Inc., intervenor.

Synopsis or Complaint Reciting its action in the public interest, pursuant to the provisions of the Federal Trade Commission Act, the Commission charged respondent, a New York corporation long engaged in the importation from Belgium of a zinc covered sheet so prepared as to imitate tiling, and in the sale of said tile and tiling substitute to jobbers, contractors, builders, and the general public for walls and ceilings of bathrooms, kitchens, breakfast rooms, as well as in hospitals, shops, and hotels, and with principal place of business in New York City, with advertising falsely or misleadingly, in violation of the provisions of section 5 of such act, prohibiting the use of unfair methods of competition in interstate commerce; in that in its advertising catalogues, circulars, leaflets and other like literature it falsely and misleadingly designates aforesaid product as “ Belgian Tile”; with tendency and capacity to deceive purchasers thereof into believing same to be tile, and to divert to it trade of competitors engaged in sale of similar products, truthfully advertised and METAL TILE CONSTRUCTION CO., INC. 181 180 Findings described, and trade of competitors engaged in manufacture and sale of genuine tile; to the prejudice of the public and competitors. Upon the foregoing complaint, the Commission made the following Rerort, Finpines 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” (88 Stat. 719), the Federal Trade Commission, on the 1st day of June, - 1931, issued and served its complaint against the respondent Metal Tile Construction Co., 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 to the said complaint, hearings were had before a trial examiner theretofore duly appointed, and testimony was heard and evidence received in support of the charges stated in the complaint and in opposition thereto. Thereafter, this proceeding came on regularly for final hearing, and the Commission having duly considered the record and being now fully advised in the premises, makes this its report, stating its findings as to the facts and its conclusion drawn therefrom:

FINDINGS AS TO THE FACTS Paragraru 1, Respondent, Metal Tile Construction Co., Inc., is a corporation organized and existing under the laws of the State of New York, with its principal place of business in the City of New York. It is now, and has been for many years, engaged in the business of importing from Belgium and selling to jobbers, contractors, builders, and the public generally, a product used for the covering of walls and ceilings. Said respondent causes said product, when sold, to be transported in interstate commerce from its principal place of business into and through numerous States of the United States, other than New York, to the purchasers thereof, at their respective points of location. In the course and conduct of its business, respondent is and has been, in competition with other individuals, partnerships, and corporations located and doing business in the United States, engaged in the sale and transportation, in interstate commerce between and among the various States of the United States, of tiles, which are prepared and shaped accordingly to the purpose required, out of clay and baked in kilns, and which are properly described and designated as tile. ee 632—33-—~13 7 Conclusion 16F. T.C.

Par. 2. Respondent solicits its business by advertising in periodicals of national circulation and by the circulation among the trade and general public of catalogues, circulars, leaflets, and other like literature, in all of which advertising it describes and designates the product imported and sold by it as “ Belgian Tile” or sometimes as “ Belgiantile ”.

Par. 3. “ Tile ” as generally understood in the building trades and by the general public is a clay product, shaped in comparatively small sized units and bakedin a kiln. Tile for the covering of walls and ceilings is usually shaped into units of about 4 inches square, and is installed upon the proper base by being set In cement by workmen who are termed “tile setters”. Most of the tile used in the United States is of domestic manufacture, there being in the United States approximately a hundred tile factories with an output in value exceeding fifteen million dollars. A considerable amount of tile sold in the United States is imported from other countries, including Belgium. The tile imported and sold in this country from Belgium is called “ Belgian Tile” and the tile imported from other countries is usually designated by the name of the country of manufacture. The. product of the respondent_i j late upon which is imposed a coat of enamel, varying in color to imitate the common colors ° : ° « nn mil te of genuine tile, Whether domestic or imported. Thé size of the zinc plate ordinarily sold by respondent i aera which is in 70s approximation to the size of twenty units of_tile, each 414 by 414 inches, set or installed upon a wall or ceiling. In the manufacture of respondent’s product, a stamp is used, whereby mortar lines are made in imitation of the mortar lines appearing on the installation of genuine tile. A plate of respondent’s products 17 by 21 inches in dimension, is an exact imitation of twenty units of tile each 414 by 414 inches installed on a wall or ceiling. Par. 4. Designation by the respondent of its product as “ Belgian Tile ” or “ Belgiantile ” as set out in paragraph 2 hereof, is false and misleading, and has the tendency and capacity to deceive the purchasers of said product into the belief that respondent’s said product is tile. Said description also has the tendency and capacity to divert to the respondent the trade of competitiors engaged in selling tile, both that imported from Belgium as well as that of domestic manufacture.

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 constitute a METAL TILE CONSTRUCTION CO., INC. 183 180 Order violation 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.”

ORDER TO CEASE AND DESIST This proceeding having been heard by the Federal Trade Commission upon the complaint of the Commission, the answer of the respondent, the testimony and briefs by counsel for the Commission and for the respondent, and the Commission having made its findings as to the facts and its conclusion that said 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, Metal Tile Construction Co., Inc., its officers, agents and employees, in connection with the sale or offering for sale of its products in interstate commerce between and among the various States of the United States and in the District of Columbia, cease and desist from— Describing the product of respondent as “ Belgian Tile” or “ Belgiantile ” or using, in the descriptions of the product sold by respondent, the word “ tile,” unless in immediate conjunction therewith there _appear the words “ imitation ‘tile madeo “metal.” lt is further ordered, e said respondent shall, within 30 days after the service upon it of t 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.

| Syllabus 16 F.T.C.

In the Marrer or