Marsh Lumber Co

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IN THE MATTER OF THE MARSH LUMDER COMPANY, TRADING AS MARSH 'VALL TILE COMPANY COMPLAINT, FINDINGS, AND ORDER IN HEGAHD TO THE ALLEGED VIOLATION" OE1 SEC. :1 OF AN ACT OF CONGRESS APPROVED SEPT. 20, 1914 Doclcct ~827. Compla.int, May 29, 1936-Decision, Nov. 6, 1937 Where a corporation dealing, among other things, in wall coverings and counter l'ovrrlngs compounded from wood chips and fibers and other substances under process resulting in ll:ll'd durable shel.'ting or covering upon which were scored or stamprd, by :manufacturer, squares resembling, when painted or lacquered by it with uifferent color from remainder of the sheeting, mortar lines on a completely installed ceramic surface, and in selling and distributing, in other States and in District of Columbia, such products, in competition, among others, with many engaged in sale and transportation, as aforesaid, of tile made from clay and baked in kilns and properly thus described and designated, with others who sell and dis· tribute wall coverings and counter coverings and various other products, including copper tile, glass tile, wood tile, rubber tile, cork tile, and the Iil,e, properly thus designatl.'d and described by such names, and with those who sell and distribute such coverings made from quarried marble and who, as marble, properly describe their said products- (a) Made use of names "l\Iarshtile" and "Marsh Wall Tile" as designations of its said products iu extensively advertising same, notwithstanding fact its said products, this designated, were not that baked clay or ceramic" product connoted, to building trade and general public, by word "tile" standing alone and without qualifying prefix, as hereinbefore set forth; with tendency and capacity to mislead and deceive substantial portion of purchasing public, to its damage and injury, into the belief that aforesaid products, thus described, were made from baked clay, and with tendency to and effect of diverting trade from competitors who sell and distribute thus made, tile products; and (b) Made use of name "1\Iarsh Marble" as designation of product made and sold by it as aforesaid; with tendency and capacity to mislead and deceive substantial portion ot. purchasing public into belief. that product thu~ described was mat·ble, to the damage and injury of said public, and with tendency to and effect of diverting trade from competitors who quarry and finish such substance:

Ileld, That such acts and practices were to the prejudice of the public and competitors and constituted unfair methods of competition. Before Mr. Charles F. D-iggs, Mr. John J. Keenan and Mr. John. L. Hornor, trial examiners.

Mr. Alden S. Bradley and Mr. Morton Nesmith for the Commission. Dyke & Schaines, of New York City, and lVilkins, Fisher & Limbach, of New Philadelphia, Ohio, for respondent. MARSH WALL TILE CO. 1339 1338 Complaint llineB, Rearick, Dorr & Hamrrwnd, of New York City, for Tile Manufacturers' Assn, Inc., amicus curae.

Complaint Pursuant to the provisions of an Act of Congress approved Sept~mber 26, 1914, entitled "An Act to create a Federal Trade Commis- !:non, to define its powers and duties, and for other purposes," the Federal Trade Commission, having reason to believe that Marsh Lumber Company, a corporation, trading as Marsh Wall Tile Com- Pa.ny, hereinafter designated as respondent, is now, and has been, usmg unfair methods of competition in commerce, as "commerce" is defined in said act, and it appearing to said Commission that a proceeding by it in respect thereof would be in the public interest, hereby issues its complaint stating the charges in that respect as follows: P A:RAGRAPII 1. The respondent, Marsh Lumber Company, is a corporation organized, existing, and doing business under and by virtue {)f the laws of the State of Ohio, with its offices and principal place {)f business located at 535-611 Tuscarawas Avenue, in the city of Dover, State of Ohio. Respondent is now and for more than one .Year last past has been engaged, under its corporate name of Marsh Lumber Company, and also under the trade-name and style of Marsh Wall Tile Company, in the business of sellin:r wall coverings and ~ountcr coverings, which are products manufactured from wood fibre, and which respondent designates and terms "Marshtile" and "Marsh Marble." Respondent distributes said produtts iO,urchas- ~rs thereof, and when orders are receh·ed therefor they are filled by respondent by shipping said wall coverings and counter coverings to pu~chasers from the city oi Dover, Ohio, in nnd through other States of the United States, and in the District of Columbia, and there is now, and has been during the time hereinbefore mentioned, a constant current of trade in commerce in said wall coverings and counter coverings so distributed and sold by said respondent, beb":ee~ and among the various States of the United States, and in the Istrict of Columbia. . In the course and conduct of its business, respondent was and is in substantial competition with other individuals, firms, partnerships, and corporations likewise engaged in the sale and distribution of wall ~overings and counter coverings, between and among the various states of the United States, and in the District of Columbia. PA~. 2. Respondent, in the course and operation of its business as 1 ~ escr1bed in paragraph 1 hereof, in soliciting the sale of, and selling Its products in interstate commerce, sells its wall coverings and coun- Complaint 25F.T.O.

ter coverings under the trade name and style of "l\Iarsh 'Wall J:ile Company," which name respondent caused and c~s"'to be con· spicuo~ displayed on its letterheads and advertising matter, and also caused and causes said products to be described fn its advertise· ments, letterhencls, billheads, contracts, and specifications circulated in interstate commerce as "Marshtil~:Marsh Wall Tile," "tile," "wall tile," "l\Iarsh Marble."

P.AR. 3. The aforesaid wall coverings and counter coverings sold and distributed by respondent, as set forth in paragraph 1 hereof, are made by exploding pine wood chips with high pressure steam treat· ing with oil welding together, and compressing into sheets by sub· jecting to high pressure in steam heated hydraulic presses. The products are then glazed with lacquer and processed in such a manner as to give said products the appearance of tile or marble respectively. To further simulate tile the products are made with a glazed surface with scores and lines of various colors in such manner and at such intervals as to make the said wood fibre products more closely resem· ble tile slabs, with various colored cement between them; and to simulate marble the products are grained, giving said product the appearance of marble. The use of the words "Marshtile," "Marsh Wall Tile," "tile," "wall tile," and "Marsh Marble," in said trade name and in said advertising literature hereinabove referred to, and the placing of said wall coverings and counter coverings in the hands of builders and dealers, enables builders, architects and speculative builders, and dealers to confuse, impose upon, alll deceive those members of the purchasing public who buy houses, and also those for whom houses are built, into the belief that when they are buying respondent's wood fibre products and installations, they are buying aml receiving silica or burned clay tile products and installations, or marble as the case may Le.

PAn. 4. The word ''tile'' is understood in the building trade, and by the general public, to mean a clay product shaped in comparatively !3mall sized units and baked in a kiln or oven. l\Iarble is understood by the building trade and the purchasin.g public to be a stone, which is a product of nature and which 15 capable of taking a polish.

PAR. 5. A subr,tantial number of the m 1 · · asing public, who have occaswn o pure 1ase buildings or equipment wherein wallcoverings and counter coverings form an integral and necessary part thereof, have a prefprence in many instances, for wall coverings and counter coverings, made from tile or from marble, believing that tile and marble are products of a quality and iluriibility superior for the purposes herein named, to other products, such as wood, irre· MARSH WALL TILE CO. 1341 1338 Complaint spective of any method of processing. Such members, when they observe such wall coverings and counter coverings already installed that have the same appearance, such as graining in various types of marble or marking simulating mortar joints in tile construction, a_s marble or tile respectively, believe that said products are actually hie or marble, and not a product made of wood; and said members of th~ purchasing public, when buying wall coverings and counter cov~rmgs having the appearance of tile or marble and unaccompanied by any explanation or description of said products and which have been installed as aforesaid, are entitled to receive tile or marble,. as the case may be, and not wall coverings or counter coverings manufactured from wood fibre.

PAn. 6. The acts and practices of reepomlent, as herein set forth,. are calculated to and do have the capacity and tendency of inducing many of the purchasing public to purchase said wall coverings and counter coverings as aforesaid, in the mistaken belief that they are PUrchasing wall coverings and counter coverings made of tile or marble.

PAn. 7. There are among the competitors of respondent engaged in. 1t te sale of wall coverings and counter coverings, as mentioned in paragraph 1 hereof, corporations, individuals, firms and partnershipsr Who sell and distribute wall coverin(•s and counter coverings manu-fut d b c ure by the same methous as responuent's prouucts, but who truthfully represent that the counter coverings and wall coverings SOld by them are not tile or marble but are imitations of tile or hlarble. There are also among<r the competitors of respondent engaged in the sale and distrib~tion of wall coverings and counter colverings, corporations, individuals, firms, and partnerships, who se 1 and distribute wall coverings and counter coverings which are hlade of clay baked in a kiln or oven, or wall coverings and counter cover'· · Ings w1nch arp marble and who truthfully reprt>sent the same to be tile or marble. ' The acts anJ practices of respondent, as herein set forth, are calcu-1 ated to, tend to and do unfairly divert trade to respondent from such <:~rporations, individuals, firms and partnerships, engaged in the sale ~h wall coverings and counter coverings in interstate commerce, t .roughout the various States of the United States, and in the Dis- . r~t of Columbia. Dy the acts and practices of the respondent here- 1~ efore set forth, substantial injury is done to competitors in inters ate commerce.

t' PAn. 8. The above and foregoing acts, practices, anJ representa- 10~s. of respondent, ha,·e been, and are, all to the prejudice of the pu he and respondent's competitors as aforesaid, and have been, and Findings 25F.T.0· are, unfair methods of competition, within the meaning and intent of Section 5 of an Act of Congress, approved September 26, 1914, entitled "An Act to create a Federal Trade Commission, to defina its powers and duties, and for other purposes." · 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 May 29, 1936, issued, and on .lune 3, 1936, served its complaint in this proceeding upon respond· {·nt, The Marsh Lumber Company, a corporation, charging it with the use of unfair methods of competition in commerce in violation of the provisions of said act. After the issuance of said complaint, and the filing of respondent's answer thereto, testimony and other ~vidence in support of the allegations of said complaint were intro· ~ luced by Alden S. Bradley and Morton Nesmith, attorneys for the Commission, before John J. Keenan, an examiner of the Commis· !'IOn theretofore duly designated by it, and in opposition to the alle· gations of the complaint by Dyke and Schaines, attorneys for the respondent; and said testimony and ·other evidence were duly recorded and filed in the office of the Commission. Thereafter the proceeding regularly came on for final hearing before the Com· mission on the said complaint, the answer thereto and testimony and other evidence; and the Commission having duly considered the ~nme and be}ng 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 TO THE FACTS PARAGRAPH 1. The respondent, The Marsh Lumber Company, is a corporation, organized and existing under and by virtue of the laws of the State of Ohio, with its office and principal place of business located at 535-611 Tuscarawas Avenue, city of Dover, State of Ohio. Respondent has been, during its corporate existence, engaged, a1nong other things, in the business of selling and distributing wall cover· ings and counter coverings, which products are manufactured froll woo(l fibre and which respowlent designates as "Marshtile," "Marsh 1Vall Tile," and "Marsh Marble."

Uespondent, in the course and conduct of its business, has sold, distributed, and transported or caused to be transpotted, its afore· ~aid products from its place of business in the State of Ohio to MARSH WALL TILE CO. 1343 1338 Findings purchasers thereof located in various points of the States of the United States other than the State of Ohio, and has maintained a constant current of trade and commerce between and among the various States of the United States and in the District of Columbia. There are among competitors of respondent many persons, firms and corporations located and doing business in the United States, engaged in the sale and transportation of tile in commerce between and among the different States of the United States, which tile is manufactured from clay and baked in kilns, whose products are properly described and designated as tile.· There are others who sell and distribute wall coverings and counter coverings and various other products, such as copper tile, glass tile, wood tile, rubber tile, cork tile, and the like, whose products are properly designated and described by such names. There are also competitors of the respondent who sell and distribute wall coverings and counter coverings manufactured from quarried marble, who properly describe their products as muble .

.PAR. 2. The term "tile," when used~e and not in conjunction With other words, Is g~nerally understood in thuuilding_trade 'l d 1. - ~ - ' n uy the general public to Ge a !lard ela_y J?product which has been bakeuin kilns and in i'tsliillJ f~nn sl1aped into comparatively small-sized units. Tile, as so under~food, is compounded from clays und a mixture of clays, feluspar, flint, talc, ball clays, prophyllite, aluminum hydroxide, silica, and some chemicals for coloring purpos~s. The materials are mixed in various proportions to produce vanous qualities in the tile. They are mixed in large· mixing vats c~ntaining agitators, until the mixture of the ceramic materials with ~ e admixture of water approaches the consistency of 11 thick soup. hen it is put in a filter press, the water being reduced to a certain Percentage of the total content of the materials, and the materials coming from the filter press are dried until they have a moisture <·content ranging from ten to fifteen percent. The materials are then ~ulverized into a dust form, which is pressed into tiles of various s iapes. The tiles are then dried down to approximately zero percent ;noisture content and fired in a kiln at a temperature exceeding red least, which may run from twelve hundred degree~s Fahrenheit up- Wa:u. The purpose of this firing is to harden the ceramic mat~rial until it is an impervious, dense, uurable mass. There are ~ aze? and unglazed types of tiles. The unglazed tile has a rough, '.1 n~nished surfare, while the glazed tile has a bhiny glass or dcro- ; ative surface, the glaze being matured after the first firing operation lY the addition of certain mineral oxides, after which it is put H"i81:!1 '"-3!1-87 1344 FEDERAL TRADE COMl\IISSION DECISIONS Findings 25 F. T. C. through a process known as "gloss firing." Floor and wall tiles are produced in relatively small individual units, the extreme permis~ sible size of the units being about six by twelve inches, the reason being that the manufacturers of ceramic products are confronted "'ith the fact that clays and mixtures of clays with other material5t when formed into wares, undergo shrinkage during the drying and firing processes. Therefore, one of the problems of the tile manu~ facturer is to produce wares free from warping or cracking, and the larger the unit the greater the liability of warping and cracking resulting from shrinkage of the mixture.

Floor and wall tile of baked clay is installed upon a proper base and set in cement by workmen known as "tile setters." The terrn "tile" when used alone and without descriptive words, means ceramic tile, which is a more complete name for the product just described. The use of the word "tile," standing alone and without descriptive words, dates back some four thousand years to the Egyptians, wllOr according to man's knowledge, were the first to discover the art of molding and baking clay into hard units, as above described. There are sellers and dis ributors, however, of other products designed to be usm as wall and counter coverings, whose said prod· uctsare . ro wrl (le~:ngnaied and d";scrioM as rubber tU,e, gl:-;s til~.,... copper tile, acoust1cn 1 e, cork life, compm:nfwn tile, metaitiler cement tile, linoleum tile, wood'tiie;" asphaltuin tiie, stone tile, anct the like. These products are generally understood in the building trade and by a substantial portion of the general public as being cov· erings made· from the substances so indicated by word or words preceding the word "tile."

The respondent's products, known as "Marshtile" and ".Marsh Wall Tile," are compounded from wood chips and wood fibres and other substances, and siccative materials, which are unique, and are baked in an oven at a high temperature, pressed and tempered, so that the final product is a hard, durable sheeting or covering. These shee~s can be cut in practically any size desired, but the general size ordinarily sold Ly respondent is tlu·ee by four feet. The surfaces ot these shcetings or cowri11gs known as "Marshtile" and "Marsh 'Vall Tile," are scored or stamped by the manufacturer from whonl respondent purchases, so that Jines forming squares are impressed upon the sheets or coverings, and when painted or lacquered by respondent a different color from the remainder of the shreting appears similar to mortar lines on a completely installed ceramic, surl face. The respondent, after finishing these products, bmnds anc labels them "Marshtile" and "Marsh 'Vall Tile." l\IARSH WALL TILE CO. 1345 1338 Findings ".Marble," as generally understood in the building trade and by the purchasing public, is a natural, one-piece, solid formation which is quarried out of the earth and cut and finished from the solid mass formation, and is cap~ble of taking a polish. PAn. 3. Many experts, including prominent architects, tile manu· facturers, tile contractors, tile jobbers, professors of ceramics, struc· tural engineers, architectural and structural standardists, and con· tractors, testified~ and the Commis!:iion finds it to be a fact, that the "'2!:._d "tile'' when standing alone means or con..!l9f&a..a..h;tked clay or c~; further, that the term "tile" standing aiOne does n_ot have to be accompanied by the word "ceramic'' to denote a ceramic tile. Dy the use of the word "tile" alone a ceramic tile is meant. '~'here are different types of tiles, or ceramic tiling, such as roofing · tiles, hollow tiles, drain tiles, and decorative wall tiles. The term "t'l1 . e,'' if used in conjunction with some other word or words, descrip· hve of the material or substance of which the product is composed, means or connotes not a baked clay or ceramic product, but a product manufactured from the other material or substance employed. ~xnmples of this are rnhL<.'r tile ashe.-to tile cork tile, wood tile, ~-vl.e, am cement tile. These various pio uc s ave een ~O nilUWlt lOlJitdmihting fi'lYUe and to a portion of the general public or a number of ye~trs. Several experts antl others, including promi· nent architects, manufacturers, building contractors, jobbers and ~~mbers of the general purchasing public, testified that the word bbl:" when standing alone meant n?thing t~ them, and they had to e Informed of the substance of winch the tile was made. D The Government of the United States, through the Procurement . er!.E!:._ment of the Treasury, in a..§i.kino~: for l1ids oJLpublic buildings, 1tc~udes in its specifications references to various products under the <elsignation of cork tile, rubber tile, linoleum tile, acoustical tilet and ot lers.

f PAn. 4. Respondent, in the course and conduct of its business as ~:h oresaid, in extensive advertising of its products, uses the names farshtile" and ":Marsh Wall Tile." The aforesaid designations, ;·he~ used alone by respondent as descriptive of or as a designation dor ~ts products, have the tendency and capacity to mislead and l e~.elve a substantial portion of the purchasing public into the ~~ tef that the protlucts so described are manufactured from baked c a~'- all of which is to the damage and injury of said purchasing pu he, anll tends to and does divert trade from competitors of ~eskpon~lent, who sell nnd distribute tile products manufactured. from a ·etl clay. . 1346 FEDERAL TRADE COl\IMISSION DECISIONS Order 25F. T.C.

The use by the respondent of the words "Marsh Marble" has a tendency and capacity to mislead and deceive a substantial portion of the purchasing public into the belief that the product so described is marble, to the damage and injury of the purchasing public, and tends to and does divert trade from competitors of respondent who quarry and finish marble.

PAR. 5. The designation and description by respondent of its products as "Marshtile" and "Marsh ·wall Tile" as heretofore described, is deceptive and misleading, and has the capacity and tendency to deceive purchasers of said products into the belief that said products are manufactured from baked clay. The designation and description by respondent of its product as "Marsh Marble," as heretofore described is deceptive and misleading, and has a capacity and tendency to deceive purchasers of said product into the belief that said product is marble, as before described. CONCI,USION The aforesaid acts and practices of the respondent, The Marsh Lumber Company, are to the prejudice of the public a.nd 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 213, 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 Corn· mission upon the complaint of the Commission, the answer of respondent, testimony and other evidence taken before John J, Keenan, an examiner of the Commission theretofore duly designate~ by it, in support of the allegations of said complaint and in opposition thereto, no briefs being filed and oral argument not having been requested 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 i.j ordered, That the respondent The 1\farsh Lumber Company,, a corporation, its officers, representatives, agents, and employees, .1n connection with the offering for sale, sale and distribution of 1ts wall boards, wall coverings and counter coverings in interstate co:n· merce or in the District of Columbia, do forthwith cease and desist from representing:

MARSH WALL TILE CO. 1347 1338 Order 1. Directly or indirectly, by the use of the words ".Marshtile," "Marsh Wall Tile " "1Vall Tile " or "tile" that its products are "tile" --..: ~nless ~ immediate' conjunc1ion' with the wq,tg~ "time~ ".Marshtile," 'Marsh ·wall Tile,"'' or 11 \Vall 'l'Ilej) wherever used, in the same conspicuous type, there arJ?eat.,Q._Word or words de~tin~e..m,aterja} or substance of WijjClj t~_P,roducts are ml}ile, such as wood tile, glass ~er tile, asbestos tile, copper tile, cork tile, or metal tile; and 2. Directly or indirectly, by the use of the words ".Marsh Marble" or "Marble" that its products are marble, when such is not the fact. It ia further ordered, That the respondent shall, within 90 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.

Complaint 25F. T.C..