Oppenheim, Collins and Co.Mp Any, Inc.

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IN 'fhe MATTER OF OPPENHEIM, COLLINS AND CO.MP ANY, INC.

COMPLAINT, FINDINGS, AND ORDER IN REGARD TO Tlie ALLEGED VIOLATION OF SEC. 5 OF AN ACT OF CONGRESS APPROVED SEPT. 26, 1914 Docket 8160. Complaint, June 23, 1981-Decision, Aug. 21, 1931 Where a corporation engaged in the operation of large department stores and in the sale therefrom, among other things, of women's wearing apparel, and in shipping its articles of merch<mdise, when sold, from its places of business to purchasers in the 1various other States; in advertising in · newspapers of interstate circulation soliciting sale of its said appareln.epresented evening wraps for women as "silk crepe," and other items of women's wearing apparel as "l\Iade of quality silks," "taffeta," "crepe," "luxurious silks," "silk lingerie," and "dark satins sprinkled with white dots," and thereby represented as silk products such items of wearing upparel to members of purchasing public, notwithstanding fact products in question were not composed of silk, product of the cocoon of the silk worm, ns long definitely understood in mind of consuming public, and were not silk products, long held In great public esteem and confidence for their preeminent qualities, and associated in the public mind with such terms as "silk crepe," "1\:lade of quality silks," "taffeta," "crepe," "luxurious sllks," "silk lingerie," "satins," and "dark satins," us used to designate, describe and refer to dress goods and other items of women's wearing apparel; With capacity and tendency to mislead and deceive substnntlal portion of purchasing public into the erroneous beliefs that such representations were true, and to cause them to buy such items of apparel as a result of such erroneous beliefs, engendered as above set forth, and with result that trade was unfairly diverted thereby to it from competitors engaged in sale of women's wearing apparel who do not misrepresent the kind ot apparel offered for sale by them; to the substantial injury of competition in commerce: ' 1Field, That such acts and practices were to the prejudice of the public and competitors and constituted unfair methods ot competition. AIr. Astor II ogg for the Commission.

0hadbourne, Wallace, Parke & Whiteside, of New York City, for respondent.

CmrPI,AINT Pursuant to the provisions of an Act of Congress approved September 26, 1914, entitled "An Act to crea.te a Federal Trade Comlllission, to define its powers and duties, and for other purposes," the Federal Trade Commission having reason to believe that Oppenheim, Collins and Company, Inc., a corporation, hereinafter referred to as ~respondent, has been and now is using unfair methods of competition lu commerce as "commerce" is defined in said act, and it appearing Complaint 25F.T.C.

to the Commission that a proceeding by it in respect thereof would be in the public interest, hereby issues its complaint stating its charges in that respect as follows :

PARAGRAPH 1. Respondent, Oppenheim, Collins and Company, Inc., is a corporation organized, existing, and doing business under and by virtue of the laws of the State of Delaware, with its office and principal place of business located at 33 ·west 34th Street in the city of New York in said State. It is now, and for many years last past has been, engaged in the business of operating large department stores from which it sells, among other things, women's wearing apparel. It sells, aml has sold and distributed, such articles of merchandise to members of the purchasing public located in the various States of the United States and in the District of Columbia. Respondent causes, and during the time herein mentioned has caused, its articles of merchandise, when sold, to be shipped from its places of business in New York, N.Y., to the purchasers thereof located in the various States of the United States other than the State of New York. There is now, and has been at all times mentioned herein, a constant current of trade and commerce by said respondent in said merchandise so sold by it between and among the various States of the United States. Respondent is now, and at all times herein mentioned has been, in substantial competition with other corporations and with persons, firms, and partnerships engaged in the sale and distribution of women's wearing apparel and other allied products in commerce between and among the various States of the United States and in the District of Columbia.

PAR. 2. In the course and conduct of its business as described in paragraph 1 hereof, respondent, in soliciting the sale of and selling said wearing apparel, caused, and now causes, advertising matter to be inserted in newspapers having interstate circulation. In said advertising matter evening wraps for women were, and are, represented, designated, and referred to as "silk crepe." In such advertising matter other items of women's wearing apparel were represented Jesignated, and referred to as "1\Iade in quality silks," "Taffeta," "crepe,'' "lu~urious silks," "Sale I silk lingerie," "dark satins sprinkled with white dots."

Such statements and representations on the part of respondent serve as representations to members of the public that such items of wearing apparel so advertised and offered for sale were silk products. The representations hereinabove set forth are and were grossly false and misleading in that said items of wearing apparel so represented, designated and referred to are not, and were not, OPPENHEIM, COLLINS AND CO., INC, 905 ll03 Findings composed of silk, the product of the cocoon of the silk worm, but Were composed of materials other than silk. PAn. 3. The word "silk" for many years past has had, and still has, in the mind of the consuming public, a definite and specific meaning, to wit: The product of the cocoon of the silk worm. Silk Products for many years have held and still hold great public esteem and confidence for their preeminent qualities. Silk fibre has long been woven into a variety of fabrics. A variety of distinctive terms have been applied to the fabrics resulting from different types of Weaving of silk fibre. Dress goods and other items of women's Wearing apparel designated, described and referred to as "silk crepe," ".Made of quality silks," "taffeta," "crepe," "luxurious silks," "silk hngerie" "satins" "dark satins" have been for a lon(l' time and at the present' time still' are associated in the public minds:>with a fabric lrlade from the cocoon of the silk worm, commonly known and Understood by the public as silk.

PAn. 4. The use by respondent of the representations set forth herein have had and now have the capacity and tendency to mislead and deceive a substantial portion of the purchasing public into the erroneous beliefs that such representations are and were true and to cause them to purchase such items of wearing apparel on account of such erroneous beliefs engendered as above set forth. There are among the competitors of respondent as mentioned in paragraph 1 hereof, corporations, individuals, partnerships, and firms engaged in ti;e sale of women's wearing apparel who do not misrepresent the ~llld of wearing apparel offered for sale. By use of the representahons aforesaid, trade has been, and is unfairly diverted to respondw ent from said competitors and thereby substantial injury is being, and has been done by respondent to competition in commerce as herein set out.

PAn. 5. The above alleged acts and practices of respondent are all to the injury and prejudice of the public and of respondent's com- Petitors and constitute unfair methods of competition in commerce \\rithin the intent and meaning of Section 5 of the Act of Congress ~ntitled "An Act to create a Federal Trade Commission, to define lbts powers and duties, and for other purposes," approved Septemer 2G, 1914.

REPORT, FINDINGS AS TO THE Facts, AND Onder Pursuant to the provisions of an Act of Congre~s approved Sep· te~ber 2G, 1914, entitled "An Act to create a Federal Trade Comnussion, to define its powers and duties, and for other purposes," the 906 FEDERAL TRADE COl\IllfiSSION DECISIONS Findings 25 F. T. C. Federal Trade Commission, on June 23, 1937, issued, and on June 24, 1937, served, its complaint in this proceeding upon respondent, Oppenheim, Collins and Company, Inc., charging it with the use of unfair methods of competition in commerce in violation of the pro· visions of said act. After the issuance of said complaint and the filing of respondent's answer, the Commission, by order entered herein, granted respondent's motion for permission to withdraw said answer and to substitute therefor an answer admitting all the material allegations of the complaint to be true and waiving the taking of further evidence and all other intervening procedure, which substitute answer was duly filed in the office of the Commission. Thereafter, the proceeding regularly came on. for final hearing before the Commission on the said complaint and the answer thereto, and the Commission having duly considered the same and being now fully advised in the premises, finds that this proceeding is in the interest of the public and makes this its findings as to the facts and its conclusion drawn therefrom:

FINDINGS AS '1'0 THE FAOI'S PARAGRAPH 1. Uespondent, Oppenheim, Collins and Company, Inc., is a corporation organized, existing, and doing business under and by virtue of the laws of the State of Delaware, with its office and principal place of business located at 33 "\Vest 34th Street in the city of New York in said State. It is now, and for many years ]ast past has been, engaged in the business of operating large depart·· ment stores from which it sells, among other things, women's wear· ing apparel. It sells, and has sold and distributed, such articles of merchandise to members of the purchasing public located in the var· ious States of the United States and in the District oQf Columbiv.· Respondent causes, and during the time herein mentioned has caused, Hs articles of merchandise, when sold, to be shipped from its places of business in New York, N. Y., to the purchasers thereof located in the various States of the United States other than the State of New York. There is now, and has been at all times mentioned herein, a constant current of trade and commerce by said respondent in said merchandise so sold by it between and among the various States of the United States. Respondent is now, and at all times herein men· tioned has been, in substantial competition with other corporations and with persons, firms and partnerships engaged in the sale and distribution of women's wearing apparel and other allied product.5 in commerce between and among the· various States of the United States and in the District of Columbia.

OPPENHEIM, COLLINS AND C0.1 INO. 907 903 Findings P.AR. 2. In soliciting the sale of aml selling its wearing app~rel, as described in paragraph 1 hereof, respondent caused, and now eauses, advertising matter .to be inserted in newspapers having an interstate circulation, in and by which advertising matter evening Wraps for women were, and are, represented, designated, and referred to ft.s "silk crepe." In such advertising matter other items Gf women's wearing apparel were, and are, represented, designated, nnd referred to as "Made of quality silks," "taffeta," "crepe," "luxurious silks" "silk linaerie " "dark satins sprinkled with white dots." ' b ' . By the means and. in the manner aforesaid., respondent represented, and. represents, to members of the purchasing public that such items of wearing apparel were, and are, silk products. The representations ~hus made by respondent are and were grossly false and misleading 1n that said items of wearing apparel so represented, designated, and referred. to are not, and were not, composed of silk, the product of the cocoon of the silk worm, but were composed of materials other than silk.

PAll. a. The word. "silk'' for many years past has had., and still has, in the mind of the consuming public a <{(>finite and specific meaning, to wit: the product of the cocoon of the silk worm. Silk lH·oclucts for many years have held. and still hold. great public esteem .and confidence for their preeminent qualities. Silk fibre has long been woven into a variety of fabrics. A variety of distinctivo terms have been applied to the fabrics resulting from different types of Weaving of silk fibre. Dress goods and other items of women's '''hearing apparel designated, described and referred to as "silk ,,crepe. '" "Made of quality' silks '" "taffeta ' " "crer:>e '" "luxurious silks '" sl)k lingerie," "satins," "dark satins" have been for a long time and at the present time still are associated in the public mind with a fabric made from the cocoon of the silk worm, commonly known Jtnd understood by the public as silk .

. PAn, 4. There are among the competitors of respondent, as menfloned in paragraph 1 hereof, corporations, individuals, partnerships, and films engaged in the sale of women's wearing apparel who do 110t misrepresent the kin(l of wearing apparel offered for sale. PAn. 5. The use by respondent of the representations set forth1 lerein has had, an<I now has, the capacity and tendency to mislead lind deceive a substantial portion of the purchasing public into the ;r1'01leous beliefs that such representations are and were true anJ. 0 canst> tht>m to purchase such items of wearing apparel as a result ;'1f such Prroneous beliefs engendered as above set forth. Dy use of •e representations aforesaid, trade has been and is unfairly diverted FEDERAL TRADE COl\11\IISSION DECISIONS908 Order 25 F. T. C. to respondent from said competitors and thereby substantial injury is being and has been done by respondent to competition in said commerce, as herein set out.

CONCLUSION I The aforesaid acts and practices of the respondent, Oppenheim, Collins and Company, Inc., are to the prejudice of the public and of respondent's competitors, and constitute unfair methods of competition in commerce, within the intent and meaning of Section 5 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 and the answer filed herein on August 18, 1937, by respondent admitting all the material allegations of the complaint to be true and waiving the taking of further evidence and all other intervening procedure, and the Com· mission having made its findings as to the facts and 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 ordered, That the respondent, Oppenheim, Collins and Com· puny, Inc., its officers, representatives, agents, and employees, in connection with the offering for sale, sale, and distribution of wearing apparel in interstate commerce or in the District of Columbia, do forthwith cease and desist from using the words "silk," "crepe,'' "taffeta," or "satin," as descriptive of products which are not com· posed of silk, the product of the cocoon of the silk worm, but which are composed of a material or materials other than silk. It is further ordered, That the respondent shall, within 30 days after service upon it 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 this order.

F. W. WASHBURN CANDY CORP. 909 Syllabus