Sher, Harry

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

IN THE MATTER OF HARRY SHER, TRADING AS ALTOONA MALT CO., ET AL. COMPLAINT AND ORDER IN REGARD TO THE ALLEGED VIOLATION OF SEC. II OF AN ACT OF CONGRESS APPROVED SEPT. 26, 1914 Docket 1!058. Complaint, July 11, 1932-order, Feb. 27, 1933 Consent order requiring respondent individuals, their agents, etc., in connection with the sale in interstate commerce of malt lilyrup, to "cease and desist from labeling, naming, or in any other wise designating such malt syrup as Royal Canadian Malt Syrup and/or as Canadian Imperial Malt Syrup unless in immediate conjunction with and as a part of the use of the said names Royal Canadian Malt Syrup and/or Canadian Imperial Malt Syrup It clearly and plainly appears in large, conspicuous type In such naming, labeling and designating that such malt syrup is manufactured in the United States of America from and of ingredients produced in the United States of America."

Mr. Edward L. Smith for the Commission.

Mr. Roy J. Stone, of Columbus, Ohio, for respondents. Complaint Acting in the public interest, 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 charges that Harry Sher, trading as Altoona Malt Company, Samuel Stone, trading as Stone Malt Company, Canadian Imperial Distributing Company, Canadian Imperial Malt Company, Royal Canadian Distributing Company, Royal Canadian Malt Company, and various other trade names, and Harry Sher, Samuel Stone, I. J. Stone, and Jack Sher, trading as Altoona Malt Company, Stone Malt Company, Canadian Imperial Distributing Company, Canadian Imperial Malt Company, Royal Canadian Distributing Company, Royal Canadian Malt Company, and various other trade names, hereinafter referred to as respondents, have been and are using unfair methods of competition in interstate commerce in violation of the provisions of section 5 of the said act, and states its charges in that respect as follows:

PARAGRAPH 1. Respondent Harry Sher, for more than one year ·prior to April 1, 1931, was engaged in the business of selling malt syrup at Altoona, Pa., where he had his principal place of business, which he conducted under the name Altoona Malt Company, and in the cities of York and Bradford, in the State of Pennsylvania, and in the cities of Elmira, Corning, Cornwell, and Jamestown, in the State ALTOONA MALT CO., ET AL, 267 266 Complaint of New York, where he conducted branches of said ~usiness under various trade names. The malt syrup dealt in by said respondent was made in the United States of America from ingredients produced in the United States of America. In the course and conduct of his said business, said respondent Harry Sher, while trading as Altoona Malt Company and while trading under various other names, caused such malt syrup when sold by him to be transported from his place of business in the city of Altoona, Pa., and from his other places of business located in the cities hereinabove mentioned, to purchasers thereof located in such States and to other purchasers thereof located in various other States of the United States, and there was for more than one year prior to Aprill, 1931, a constant current of commerce by said respondent in such malt syrup between and among various States of the United States. In the course and conduct of his said business, said respondent Harry Sher was for more than one year prior to April 1, 1931, while trading as Altoona Malt Company and while trading under various other trade names, in competition with other persons and with corporations and partnerships engaged in the sale of malt syrup between and among various States of the United States.

PAR. 2. In the course and conduct of his said business, said respondent Harry Sher offered for sale and sold until April 1, 1931, or thereabouts, malt syrup made in the United States of America from ingredients produced in the United States of America, which he described and designated in advertisements distributed among purchasers and prospective purchasers in the various States of the United States, on his letterheads, and on the labels of the containers of such malt syrup as:

ROYAL CANADIAN 'MALT SYRUP To the left of the words "Royal Canadian Malt Syrup " used on the labels of the containers of the malt syrup sold by said respondent Harry Sher, trading as Altoona :Malt Company and under various other trade names, appeared the following words printed on a repre- . sentation of a maple leaf:

If you enjoy the real original Flavor, Body, and Strength Always insist on ROYAL CANADIAN MALT A Little Better than the ordinary Malt while to the right of said words "Royal Canadian Malt Syrup" appeared the following words printed on a representation of another maple leaf:

Complaint 17F.T.C. Results are simply amazing Better Hop Flavor, Richer Body, and Exceptional Strength All ln a big can of ROYAL CANADIAN BRAND MALT This malt was formerly called Canadian Style and centered between the aforesaid representations of maple leaves and between the word " Canadian" and the words "Malt Syrup" in the aforesaid designation Royal Canadian Malt Syrup was a. representation of a crown beneath which appeared the letters: A M co PAR. 3. Respondent Samuel Stone, for more than one year prior to April 1, 1931, was engaged in the business of selling malt syrup at Columbus, Ohio, where he had his principal place of business, which he conducted under the names Stone Malt Company, Canadian Imperial Distributing Company, Canadian Imperial Malt Company, Royal Canadian Distributing Company, Royal Canadian Malt Company, and various other trade names, and in the cities of Newark, Akron, Canton, Cleveland, Youngstown, Dayton, Lorain, Sandow, Massillon, Piqua, Steubenville, and Toledo, in the State of Ohio, and in the cities of Beaver Falls and Sharon, in the State of Pennsylvania, where he conducted branches of the said business under such various trade names. The malt syrup dealt in by said respondent was made in the United States of America from ingredients produced in the United States of America. In the course and conduct of his said business, said respondent Samuel Stone, while trading as Stone Malt Company and while trading under such various other trade names, caused such malt syrup when sold by him to be transported from his place of business in the city of Columbus, Ohio, and from his other places of business located in the cities hereinabove mentioned, to purchasers thereof located in such States and to other purchasers thereof located in various other States of the United States, and there was for more than one year prior to April 1, 1931, a constant current of commerce by said respondent in such malt syrup between and among various States of the United States. In the course and conduct of his said business, said respondent Samuel Stone was for more than one year prior to April 1, 1931, while trading as Stone Malt Company and while tra.ding under such various other trade names, in competition with other persons and with corporations and partnerships engaged in the sale of malt syrup between and among various States of the United States. PAR. 4. In the course and conduct of his said business, said respondent Samuel Stone offered for sale and sold until April 1, 193.1, or thereabouts, malt syrup made in the United States of ALTOONA MALT CO., ET AL, 269 266 Complaint America from ingredients produced in the United States of America, which he described and designated in advertisements distributed among purch3;sers and prospective purchasers in the various States of the United States, on his letterheads, and on the labels of the containers of such malt syrup as:

CANADIAN IMPERIAL MALT SYRUP To the left of the words" Canadian Imperial Malt Syrup" used on the labels of the containers of the malt syrup sold by said respondent Samuel Stone, trading under the aforesaid various trade names, appeared the following words printed on a representation of a shield:

CANADIAN IMPERIAL results are simply amazing, adds a new and irresistib1e flavor to every dish. The original malt of its kind. Formerly known as Royal Canadian.

while to the right of the said words, "Canadian Imperial Malt Syrup," appeared the following words printed on a representation of another shield :

CANADIAN IMPERIAL is a new dellghtfully di1ferent product manufactured by a special process from the choicest of grains and hops. There is nothing else like it. Insist on the big 4%, lb. can.

and printed underneath the said last mentioned lettering were the words:

Packed especially for Canadian Imperial Distributing Company In the center of the said label and between the words " Canadian Imperial " and the words " Malt Syrup " in the aforesaid designation "Canadian Imperial Malt Syrup" was a representation of a crown above and between two lions rampant. PAR. 5. On or about April 1, 1931, the aforesaid business which prior to that time had been conducted by said respondent Harry Sher as hereinbefore described, and' the aforesaid business which prior to that time had been conducted by said respondent Samuel Stone as hereinbefore described were combined through the organization of a partnership consisting of the said Harry Sher, respondent, the said Samuel Stone, respondent, I. J. Stone, respondent, and Jack Sher, respondent, since which aforesaid date, to wit, April 1, 1931, or thereabouts, both of the aforesaid businesses have been conducted Complaint 17F.T.C. by the said partnership under various trade names, to wit, Altoona Malt Company, Stone Malt Company, Canadian Imperial Distributing Company, Canadian Imperial Malt Company, Royal Canadian Distributing Company, Royal Canadian Malt Company, and others. The said partnership has continued to sell between and among the various States of the United States, malt syrup manufactured in the United States of ingredients produced in the United States, as " Royal Canadian Malt Syrup " and as " Canadian Imperial Malt Syrup," both of which said brand names have appeared and still appear in advertisements of all of said respondents, trading under the aforesaid and other trade names, distributed among purchasers and prospective purchasers in the various States of the United States, on their letterheads, and on the labels of the containers of such malt syrup.

The labels used on containers of the aforesaid malt syrup styled by the aforesaid respondents Harry Sher, Samuel Stone, I. J. Stone, and Jack Sher trading as Stone Malt Company and under such various other trade names, as Royal Canadian Malt Syrup is substantially the same as that previously used by said Harry Sher, respondent, and described in paragraph 2 hereof, with certain exceptions, to wit:

Instead of the letters "A M CO" under the crown as described in paragraph 2 hereof, the letters "R C CO" appear; and instead of the name "Altoona Malt Company" appearing on the said labels there appears the following wording:

Sole distributors Royal Canadian Distributing Company 37 W. Spruce St., Columbus, 0.

and in small and in inconspicuous type (not clearly observable) on such new labels appear the words:

Made In the good old U.S.A.

The labels used on containers of the aforesaid malt syrup styled by the aforesaid respondents Harry Sher, Samuel Stone, I. J. Stone, and Jack Sher trading as Stone Malt Company and under such various other trade names, as Canadian Imperial Malt Syrup is substantially the same as that previously used by said Samuel Stone, respondent, and described in paragraph 4 hereof, except that on such new labels appear in small and in inconspicuous type, not clearly observable, the words:

Made In the good old U.S.A.

PAR. 6. Malt syrup made in Canada or made in the United States from and of ingredients produced in Canada is widely and popularly ALTOONA MALT CO., ET AL. 271 266 Complaint lmown among the purchasing public in the United States, many :members of such purchasing public preferring malt syrup made in Canada or in the United States from and of ingredients produced in Canada over malt syrup made of ingredients produced in countries other than the Dominion of Canada. The maple leaf, crown, shield and lions rampant as used on the labels hereinbefore described have generally been and still are associated, in the public mind, with the Dominion of Canada and as used on the labels hereinbefore described convey the impression that the syrup sold in the containers so labeled is made in Canada or in the United States from and of ingredients produced in the Dominion of Canada. PAR 7. Tlie practice of the respondent Harry Sher, trading as Altoona Malt Company and under various other trade names, in offering for sa~e and selling malt syrup manufactured in the United States from and of ingredients produced in the United States but labeled and branded as set out in paragraph 2 hereof; and the practice of the respondent Samuel Stone, trading as Stone Malt Company, Canadian Imperial Distributing Company, Canadian Imperial Malt Company, Royal Canadian Distributing Company, Royal Canadian Malt Company, and various other trade names, in offering for sale and selling malt syrup manufactured in the United States from and of ingredients produced in the United States but labeled and branded as described in paragraph 4 hereof; and the use by said respondent Samuel Stone of the word " Canadian " in his various trade names as set forth in paragraph 3 hereof; and the practice of the respondents Harry Sher, Samuel Stone, I. J. Stone, and Jack Sher, trading as Altoona Malt Company, Stone Malt Company, Canadian Imperial Distributing Company, Canadian Imperial Malt Company, Royal Canadian Distributing Company, Royal Canadian Malt Company, and various other trade names, in offering for sale and selling malt syrup manufactured in the United States from and of ingredients produced in the United States but labeled and branded as described in paragraphs 2, 4, and 5 hereof; and the use by said respondents Harry Sher, Samuel Stone, I. J. Stone, and Jack Sher of the word " Canadian " in their various trade names, have had and have the capacity and tendency to mislead and deceive and have furnished wholesale and retail dealers with the :means to mislead and deceive the purchasing public into the belief that the malt syrup so labeled, branded, described, and sold by said respondents under said trade names of which the word " Canadian" is a part, has been, was, and is a Canadian malt syrup imported into the United States, or malt syrup manufactured from and of rna- Order 17F.T.C terials or ingredients produced in Canada, and to induce the purchase of such malt syrup in reliance upon such erroneous belief. Such practices have had and have the capacity and tendency to divert trade to respondents from competitors offering malt syrup for sale in interstate commerce.

PAn. 8. The above alleged acts and practices of respondents are all to the prejudice of the public and respondents' competitors, and constitute unfair methods of competition in interstate commerce 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 T~e respondents herein having filed their answer to the complaint in this proceeding and having subsequently filed with this Commission their motion that they, and each of them, be permitted to withdraw their said answer, that they, and each of them, be permitted to waive hearing on the charges set forth in the said complaint and not to contest the said proceeding; and the respondents having consented that this Commission might make, enter and serve upon them, and each of them, as provided in paragraph 2 of Rule III of the Commission's Rules of Practice, an order to cease and desist from the methods of competition described in said complaint; and the Commission being fully advised in the premises, It is hereby ordered, That the aforesaid motion be and the same is hereby granted; and it is hereby further ordered that the said respondents, Harry Sher, trading as Altoona Malt Company, Samuel Stone, trading as Stone Malt Company, Canadian Imperial Distributing Company, Canadian Imperial Malt Company, Royal Canadian Distributing Company, Royal Canadian Malt Company, and various other trade names, and Harry Sher, Samuel Stone, I. J. Stone, and Jack Sher, trading as Altoona Malt Company, Stone Malt Company, Canadian Imperial Distributing Company, Canadian Imperial Malt Company, Royal Canadian Distributing Company, Royal Canadian Malt Company, and various other trade names, and each of them, their agents, employees, and representatives in the sale, offering for sale, or advertising for sale in interstate commerce of malt syrup forthwith cease and desist from labeling, naming or in any other wise designating such malt syrup as "Royal Canadian Malt Syrup" andjor as "Canadian Imperial Malt Syrup " unless in immediate conjunction with and as a part of ALTOONA MALT CO., ET AL. 273 266 Order the use of the said names "Royal Canadian Malt Syrup" and/or "Canadian Imperial Malt Syrup" it clearly and plainly appears in large, conspicuous type in such naming, labeling, and designating that such malt syrup is manufactured in the United States of America from and of ingredients produced in the United States of America.

It is hereby further ordered, That the said respondents, and each of them, shall, within 60 days after the service upon them, and each of them, of this order, file with this Commission a report or reports in writing setting forth in detail the manner and form in which they, and each of them, have complied with this order. Complaint 17 F.T.C.