Council, Clarence B

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IN THE MATTER OF CLARENCE ll. COUNCIL, TRADING AS STATISTICAL RE- SEARCH BUREAU, AND METALS AND MINERALS RE- SEARCH BUREAU.

COMPLAINT, FINDINGS, AND ORDER IN REGARD TO THE ALLEGED VIOLATION OF SEC. l'i 0~' AN ACT OF CONGRESS APPROVED SEPT. 26, 1914 Docket 3Ji2. Complaint, Dec. 1-1, 191,0 1-Dccision, Feb. 21,, 191,2 Where an individual, engaged in the compilation and interstate sale and distribution of a publication known as "The Mining 1\Ianual," in competition with a concern which compiled and published its "The Mines Register" of information concerning mining and mining companies- _(a) Represented, through statements published and circulated to subscribers of "The Mines Register" and to others, that his said "Manual" was published periodically throughout the year, thereby giving complete and up-to-date information concerning various companies and their activities, and was superior to said competitive "Register," that Iutter was not an authentic and high-grade publication, and that information and material therein contained were out of date:

When as a matter of fact his own publication comprised only the first 200 pages of a perpetual manual which he never completed, and of which section 1 of part 1 did not appear for nearly a year after the making of his said rrpresentations, to be followed eight mouths later by section 2, and in the following yrar hy section 3, the Just; and said "l\Iines Register," published from time to time, gave as complete information us was obtainable concerning mining companies, organizations, equipment, etc., and was con~:;idered to be authentic, reliable, and up-to-date;

(b) Represented, directly and by implication, through circular letters, that be had been engaged in publishing books of mining information since 1925, and that his said "Man~al'' was generally recognized as of preeminent merit. constituting a standard ref{•rence work, and the only up-to-date information service on mines published, containing all the information with respect to mining companies contained in the aforesaid "Register," and ready· for immediate delivery;

TI.Je facts b~ing he luul not been engaged in business as claimed; his said "Manual" was not grnerally recoguizrd as a standard reference work, or the only one publishing up-to-date information service on mines; and said "Register" contained mining information not included in his "Manual," no part of which was ready for delivery until almost a year later, as noted above;

With capacity and tendrucy to mlslrnd aud deceive a substantial portion of the purchasing public Into the mistaken bPI!ef that such representations were true; that said "Register" was not authentic, reliable and up-to-date, anrl that his "Manual" was a Rnperior product, whereby purchnRing public ,.,..,~ 1 •\menrlcd.

Complaint 34F. T. C.

induced to buy his puiJllcatlon in preference to said "Register" and others, and trade was thereby diverted unfairly to him from his competitors: Held, That such acts and practices, under the circumstances set forth, were all to the prejudice and injury of the rmbllc and competitors, and constituted nn!alr methods of competition.

Before Mr. Olwrles P. Virwini, Mr. Edward E. Reardon and Mr. ~Vile~ J. Furnas, trial examiners .

.Mr. Randolph 1V. Branch for the Commission. AMENDED Complaint Pursuant to the provisions of the Federal Trade Commission Act, and by virtue of the authority vested in it by said act, the Federal Trade Commission, having reason to believe that Clarence B. Council, ·individually, and trading as Statistical Research Bureau, and as :Metals and Minerals Research Bureau, hereinafter referred to as re- ~pondent, has violated the provisions of the said act, and it appearing to the Commission that a proceeding by it in respect thereof would be in the public interest, hereby issues its amended complaint, stating its charges in that respect as follows:

· PARAGRAPH 1. Clarence B. Council, is an individual, who for some time prior to October 1, Hl37, conducted a business under the trade name of Statistical Research Bureau, at Room 523, 315 :Montgomery Street, San Francisco, Calif. Since that date respondent has been, and is now, conducting said business under the trade name of Metals and Minerals Research Bureau, at Room 300 Flatiron Building, 9 Sutter Street, San Francisco, Calif. For several years last past the respondent has been engaged in the business of compiling and publish~ i_ng, and in selling and distributing in commerce as herein set out a publication known as The Mining Manual. The purpose of said publication is to disseminate to the subscribers thereto certain mining information and to acquaint them with information relative to the activities of mining companies. The respondent, operating under either c,me or the other of said trade names, causes said publication, when sold, to be distributed by mail and otherwise from his places of business in San Francisco, Calif., to various purchasers and subscribers located at points in the various States of the United States other than California. Respondent thus maintains, and has maintained for more rhan one year last past, a cour::;e of traue and commerce in said publication betwt>en and among the various Statps of the United States and in the District of Columbia.

PAR. 2. In the course and conduct of his aforesaid business, the respondent has been, and is now, in competition with other "individual::;, STATISTJCA,L IRESE~RCH BUREAU, ETC. 689 687 Complaint ttnd with firms and corporations, like·wise engaged in compiling and publishing, and in selling and "distributing publications of a similar"' nature and character, or designed and intended for similar usage, in commerce among and between the various States of the United States and in the District of Columbia who do not unfairly disparage the competing<Y0 publications of their competitors. · . PAR. 3. Among the respondent's aforesaid competitors is the Atlas. ~>publishing Co., Inc., a corporation, having its principal place of business in the city of New York, State of New York. This concern compiles, publishes, sells, and distributes to subscribers located throughout the various States of the United States and in the District of Columbia, a book or publica6on known as, the Mines Register. This publication is designed for the purpose of, and does, disseminate t(} subscribers thereto intelligence and information with respect to mining, mining companies, ancl their activities in general. ' 1~ AR. 4. In the course and conduct of his business, and for the parpose of inducing the purchase of his publication, the Mining 1\Ianual~ in prefer-ence to the publication the Mines Register, the respondent has published and circulated to subscribers and prospective subscribers of the publication known as the l\Iincs Register, and to others located throughout the various States of the United States, many false and misleading statements with respect to the. value, completeness, and thoroughness of said competitive publication, the :Mines Register. PAR. 5. Included in and embraced in said circular letters or other such written, printed, or typed matter so distributed by the respond- <'nt, as aforesaid, have been and are false, misleading, and derogatory ~Statements as follows:

Should you, by chance, be contemplating paying $25 for The Mines Register.. Which may possibly be published by the end of the year, we want to tell you that The Mining Manual will bring you all the information on the mining coml>anles It wlll contain and In addition a more complete, up-to-date and later coverage of the mines in the United States. We urge you to save the $15 difference.

NOTicD-TO Subscribers to THE MINES REGISTER: We understand you have subscribed .for a copy of the above book expected· to be published later this year. .

We know from experience that it Is Impossible to publish up-to-date and comt:Iete Information on the mines in a single volume. That more than 50% of the data Is out-of-date by the time Rurh a book Is of1' the press. The present ll<'tlvity Jn the mining industry Is too great to expect otherwise. Why pay $25 and walt for old, out-of-date Information when you can obtai[) now the very latest data In The 1\tinlng Manual. Ami the lining l\[anual keeps bringing you this late, authentic data th1·oughout the ye11r. It kP<'lls you abreast of the developments in the only wny po~;:sible. by publl!:hlng In sPctlons. 4flfli'\06•~-42-voi. :14-44 Complaint 34F. T. C.

Furthermore it only costs you $10, if you use the enclosed special order form at once.

Send your order today as this offer is limited. As you know, books like The l\Iines Register are far too often consulted to find little or no information on the subject desired, in fact, inquiry privilege:i are necessary to give any set·vice a practical and reul business vulne. PAR. 6. Through the use of the aforesaid false and misleading statements and representutions above set out, and others similar t~1er~to, the respondent has unfairly disparaged his competitor, the Atlas Publishing Co., Inc., and its publication, the l\Iines Register. In truth and in fact, the aforesaid publication, the l\Iines Hegister, is an authentic, reliable, high-grade publication, containing informative and up-to-date information covered )n a practical and thorough manner. The information with respect to mining companies and mining operations contained in said publication is not out of llate or of no value. PAR. 7. The aforesaid false representations and implications so made and used by the respondent in connection with the sale of his publication in said commerce have the tendency and capacity to, anJ do, mislead and deceive subscribers and prospective subscribers to the publication, the l\Iines Register, as well as others, into the false anJ erroneous beliefs that said representations and implications are true; that said publication, the l\Iines Register, is not an authentic, reliable and high-grade publicatibn, containing informative and up-to-date matter, covered in a practical and thorough manner; that the information and material therein contained is out of date and that respolldent's publication, the l\Iining l\Ianual, is superior to the competitiv~ publication, the l\Iines Register, in the respects herein alleged, and into the purchase of respondent's said publication in preference to and in lieu of the publication compiled, sold and distributed by its aforesaid competitor. As a result of the aforesaid mistaken and erroneous beliefs on the part of subscribers and prospective subscribers to the competitive publication, the l\Iines Register, and on the part of other members of the purchasing public, all induced ns aforesaid, trade has been diverted unfairly to the respondent from such competitor. As a consequence thereof injury has been, and is now being, done by respondent to competition in commerce among and between the various States of the United States.

PAR. 8. In the course and conduct of his business, and for the purpose of inducing the purchase of his publication, the l\fining l\fanual, respondent made and caused to be made, by means of circular letter:'! addressed to persons located in various States of the United State:; other than the State of California, representations and claims concern- STATIS'TIGAJL RESEARCH BUREAU, ETC. 691 nsi Complaint ing the length of time he had been engaged in the business of publishing such books, the high public- regard in which the Mining Manual was held in comparison with all other similar works, the scope of the information contained therein and the readiness of the book :for delivery.

Among and typical of the said representations and claims so made are those contained in the first and the fourth :from the last of the subparagraphs quoted in paragraph 5 hereof and the following: Established 192;j.

The standard reference work on mines and ruining companies in the United States.

The Only Up-To-Date Information service on 1\.lines Published. • • • we are very anxious that you have a copy of this new large book • • •.

The said statements appear in connection with a depiction of a hook of substantial bulk, upon whose cover appears "The Mining .Manual."

PAR. 9. Through the use of.the aforesaid.statements, and others of similar import and meaning, respondent has represented, directly and by implication, that he has been engaged in publishing books of mining information since 1925; that the Mining :Manual is generally recognized as a work of preeminent merit; that the said book contained all of the information with respect to mining companies contained in a similar book known as the Mines Register, and that the said Mining Manual was ready for immediate delivery to purchasers. PAR. 10. The aforesaid claims and representations so made and disseminated by respondent are misleading and untrue. In truth and in fact, respondent has not been engaged in the business of publishing such books since 1D25. · Tlie Mining l\Ianual is not generally tecognized as a work of preeminent merit in its field. The :Mines Register contains information on mines and mining companies which is not included in the Mining Manual. The Mining Manual was not ready for immediate delivery to purchasers at the time when the statement last quoted in paragraph 8 hereof was disseminated as aforesaid.

PAR. 11. The use by respondent of the representations as set forth l1erein in connection with the offering for sale and sale of his publication, the Mining 1\Iannal, has had the tendency and c.apacity to mislead purchas<'rs and prospective purchasers into the erron<'ons and mistaken belief that such claims and representations are true, and to induce them to purchase the said book on account thereof. 692 FEDERAL TRADE, COMMISSION DECISIONS Findings 34F. T.C.

As a result thereof, trade has been unfairly diverted to respondent from respondent's competitors .who do not resort to such false and deceptive representations. As a consequence thereof, injury has been done by respondent to competition in commerce between and among various States of the United States and in the District of Columbia. PAR. 12. The above acts and practices· of respondent as herein alleged are all to the prejudice of the public and of respondent's competitors and constitute unfair methods of competition in com· merce within the intent and meaning of the Federal Trade Commission Act.

- REPORT, FINDINGS AS TO THE FACTS, AND ORDER Pursuant to the provisions of the Federal Trade Commission Actt the Federal Trade Commission, on August 31, 1938, issued and subse· quently served its complaint upon the'respondent, Clarence B. Council, individually, and trading as Statistical Research Bureau, and Metals and Minerals Research Bureau, charging him with the use of unfair methods of competition in commerce in violation of the provisions of the said act. After the issuance of said complaint and the filing of respondent's answer thereto, testimony and other evidence in support of said complaint were introduced by R. J. Martin, John R. Philips, Jr., and D. T. Puckett, attorneys for the Commission, and in opposition to the allegations of the complaint by Harold E. Haven, attorney for the respondent, before trial examiners of the Commission theretofore duly designated by it, an~ said .testimony and other evidence were duly recorded and filed in .the office of the Commission. Subsequent thereto, on motion of counsel for the Commission, the Federal Trade Commission, on December 14, A. D. 1940, entered its order amending the complaint filed herein and further ordering that evidence taken in support of, and in opposition to, the complaint be adopted as evidence in support of, and in opposition to, the complaint as amended; and on December 14, t940, the Commission issued and subsequen~ly served its amended complaint upon said respondent. Thereafter, this proceeding regularly came on for final hearing be· fore the Commission upon said amended complaint, testimony and other evidence, report of the trial examiners upon the evidence, and brief in support of the complaint (1"1;0 brief having been filed by the respondent or oral argument requested); and the Commission having duly considered the matter 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:

STATISTICAL RESEARCH BUREAU, Err'C. 693 '387 Findings FINDINGS AS TO THE FACTS PARAGRAPH 1. Clarence B. Council, is an individual who, for some time prior to Octqber 1, 1937, conducted a business under the trade name of "Statistical Research Bureau," at Room 523, 315 Montgomery Street, San Franscisco, Calif. Subsequent to said date, said respondent conducted his said business under the trade name of "Metals and Minerals Research Bureau," at Room 300, Flatiron Building, 9 Sutter Street, San Francisco, Calif.

PAR. 2. For several years last past, respondent has been engaged in compiling and publishing, and in selling and distributing, a publication known as "The.Mining Manual," in commerce among and between the various States of the United States. The purpose of said publication was to disseminate to subscribers thereto, certain mining information, and to acquaint them with information relative to the activities of mining companies. Respondent caused said publication, when sold, to be transported from his place of business in San Francisco, State of California, to purchasers thereof and subscribers thereto located in various other States of the United States. Respondent maintains, and at all times mentioned herein has maintained, a course of trade in said publication in commerce among and. between the, various States of the United States and in the District of Columbia. PAR. 3. In the course and contluct of his aforesaid business, respondent has been in competition with other individuals and with firms and corporations likewise engaged in compiling and publishing, and in selling and distributing, publications of a similar nature and character, or designed and intended for similar usagEl, in commerce among and between the various States of the United States, PAR. 4. Among the respondent's aforesaid competitors is the Atlas Publishing Company, Inc., a corporati.on having its principal place of business in the city of New York, State of New York. This concern compiles, publishes, sells, and distributes to purchasers and subscribers located throughout the various States of the United States and in the District of Columbia, a book or publication Iaiown as "The Mines Register," This publication is designed for the purpose of,· and does, disseminate to subscribers thereto, intelligence and information with respect to mining, mining companies, and their activities in general.

PAR. 5. In the course and conduct of his business and for the purpose of inducing the purchase of his publication "The Mining l\Ianual" In preference to the publication "The Mines Register," respondent has Published and circulated to subscribers and prospective subscribers of COMMISSIO~ DECISIONS694 FEDERAL TRADE Findings 3-!F.T.C.

the publication known as "The l\Iines Register," and to others located throughout the various States of the United States, many false _and misleading statements with respect to the value, completeness, and thoroughness of said competitive publication "The Mines Register" and the comparative merits of respondent's publication "The Mining l\Ianual."

Among and typical of such representations are the following: Should you, by chance, be contemplating paying $25 for 'lhe 1\Iines Register, which may possibly be published by the end of the year, we want to tell you that the Mining Manual will bring you all the information on the mining coml'anies it will contain and in addition a more complete, up-to-date and later cov· erage of the mines in the United States. We urge you to save the $15 difference. No: Ice.-To Subscribers to THE 1\IIIIiES RECISTI!.'R: 'Ve understand you have subscribed for a copy of the above book expected to be published later this year.

'Ve know from experience that it is impossible to publish u~to-date and complete information on the mines in a single volume. That more than rio% of the data is out-of-date by the time such a boo!;: is off the press. The present activity in the mining Industry is too grf'at to expect otherwise. Why pay $25 and wait for old, out-of-date information when you can obtain now the very latest data in The 1\Iining 1\Ianual. And the Mining Manual keep~ bringing you this late, authentic data throughout the year. It keeps you abreast of the. developments In the only way possible, by publishing in sections. • • • • • • • As you know, books like The 1\Iines Register are far too often consulted to find little or no information on the subject df'sired, in fact, inquiry privi!Pges are necessary to give any service a practical and real business value. PAR. 6. Through the use of the aforesaid false and misleading statements and representations, and others similar thereto, the respondent represented that his publication "The Mining Manual" is published periodically throughout the year, thereby giving complete and up-todate information concerning various mining companies and their ltctivities; that "The Mines Register,'' published by the Atlas Publishing Co., Inc., was not an authentic, reliable, high-grade publication containing information and up-to-date matter covered in a. practical and thorough manner; that the information and material _therein contained were out of date; and that "The _l\Iining Manual" was superior to said competitive publication, "The Mines Register." PAR. 7. In truth and in fact, respondent's publication ''The Mining l\Ianual'' was not published periodically, and although such representations as to publication were made by the respondent in the early part of 1936, no issue was published during the year 1936, and it was not until February or March, 1937, that part 1, section 1, of said publication was issued and distributed. There were no further issues of said publication until November 1937, when respondent issued what was designated as part 1, section 2 of said publication. In 1938, STATISTICAL RESE~\RCH B'CR.EAU., ETC. 695 G87 J<'indings • part 1, section 3, was issued. The tl1ree sections described do not constitute the entire publication but only the first 200 pages of a perpetual manual which was never completed by the respondent. Consequently, said "The l\Iining Manual" did not furnish subscribers with complete or up-to-date information or furnish a service comparable to "The .1\lines Register." "The Mines Register" is a publication which is published from time to time, giving as complete information as is obtainable concerning various mining companies, organizations, equipment, etc., and is considered as being an authentic, reliable publication containing up-to-date matter. The use of the statements and representations made by the respondent with reference to "The Mines Register" constituted an unfair disparagement of his competitor the Atlas Publishing Co., Inc., and its publication "The l\fines Register.'' PAR. 8. In addition to the statements and rE>presentations hereinabove described, the respondent has made, and caused to be made, by means of circular letters addressed to persons located in various Rtates of the United States, representations and claims concerning the length of time that he had been engaged in the- business ·of publishing "The Mining Manna 1," the high public regard in which "The Mining Manual" is held in comparison to all other similar works, the scope of information containt>d therein, and the readiness of the book for delivery. Among and typical of the many representations and claims so made are the following: Should you, by ch:mcf', be contemplatiug paying $25 for The Mines Register, "Which may possibly be published by the end of the year, we want to tell you that The Mining 1\Ianual will bring you all the Information on the mining companies it "Will contain and in addition a more complete, up-to-date and later coverage of the mines in the Unite·d States. Established 1925.

A standard reference work on mines and mining compani~>s in the United States.

The only up·to-date Information service on mines published. • i • We are very anxious that you have a copy of this new, large book. (The latter statement appears in connection with a depiction of a book of substantial bulk, upon the cover of which appears, "The l\Iining 1\Ianual.") PAR. 9. Through the use of the aforesaid statements, and others of similar import and meaning, respondent has repre::;ented, directly nnJ. by implication, that he has bee>n engaged in publishing books of mining information since Hl:25; that ''The ~lining Manual" is gen- Prally recogniz<'ll ns a work of prf:'eminent mE>rit and constitutes a f:Landard refl'rence work and is the only up-to-date information service on mines puhlishPd; that the said book ('OBtains all information with respect to mining ('ompanie::; contained in the book known as -696 FEDERAL TRADE COMMISSION DECISIONS Order 34F. T. C.

"''The Mines Register"; and that ''The Mining Manual" was ready • for immediate delivery to purchasers.

PAR. 10. The aforesaid claims and representations disseminated by respondent are misleading and untrue. In truth and in fact, re- -spondent has not been engaged in the business of publishing such books since 1925, and ':The Mining 'Man.ual'~ is not generally recognized as a work o:f preeminent merit in its field. It is not a standard reference work and is not the only up-to-date information service -on mines published. "The Mines Register" contains information on mines and mining companies which is not included in "The Mining .Manual." "The Mining Manual" was not ready for immediate delivery to purchasers; in fact, no part of said Manual was delivered until almost a year after such representation was made. PAR. 11. The use by the respondent of the false and misleading statements and representations hereinabove set forth, including those with reference to "The Mines Register," its comparative value to "''The Mining Manual," and the scope and value of "The Mining .Manual," has had the capacity and tendency to mislead and deceive a substantial _portion of the purchasing public into the erroneous .and mistaken belief that such representations and statements are true, that "The Mines Register" is not an authentic, reliable, and high-grade publication containing informative and up-to-date matter, and that ''The Mining Manual" is a superior publication. As :a result of such erroneous and mistaken belief, the purchasing public hns been induc£>d to purchase respondent's publication in preference to "The Mines Regist£>r" and other publications, thereby diverting trade unfairly to the respondent from his competitors who are engaged in competition in commerce among and between the various States of the United States and in the District of Columbia. CONCLUSION The aforesaid acts and practices of the respondent, as herein found, are all to the prejudice and injury of the public and of respondent's competitors, and constitute unfair methods of competition in commerce within the intent and meaning o£ the Federal Trade Commission Act.

ORDER TO CEASE AND D~IST This proceeding having been heard by the Federal Trade Commis· sion upon the amended complaint of the Commission, testimony and other evidence taken before trial examiners of the Commission there· t.afore duly designated by it, in support of the allegations of said amended complaint and in opposition thereto, report of the trial STATISTlCAL RESEARCH BUREAU, Erro. 697 687 : Order examiners upon the evidence, and brief filed in support of the amended complaint; and the Commission having made its findings as to the facts and its conclusion that said respondent has violated the provisions of the Federal Trade Commission Act; It is ordered, That the respondent, Clarence B. Council, an indi- ·vidual, trading as Statistical Research Bureau, and as Metals and Minerals Research Bureau, or under any other trade name, his representatives, agents, and employees, directly or through any corporate or other device, in connection with the offering for sale, sale, and distribution of his publication known as "The Mining Manual," or any other similar publication known as "The Mining J\Ianual," or any other similar publication, in commerce . as "commerce" is defined in the Federal Trade Commission Act, do forthwith cease and desist from:

1. Makipg, or causing to be made, in any form or manner, any false or disparaging statements with reference to the authenticity, I·eliability, or present value of the publication known as "The Mines Register," published by the Atlas Publishing Company, Inc., or any other competitive publication furnishing similar information or service.

2. Representing, directly 'or indirectly, that the information contained in respondent's publication "The Mining Manual" is more authentic or reliable, or has greater present value, than the publication "The Mines Register," or any other competitive publication furnishing similar information or service.

· 3. Representing, directly or indirectly, that respondent can furnish authentic, reliable, and up-to-date information through and by means of his publication "The Mining Manual," or any other similar publication, when the facilities for the issuance of such publication are not immediately available to the respondent. 4. Misrepresenting, in any manner, the nature, extent, or value of respondent's publication "The Mining Manual," or any other publication, or the length of time in which said respondent has been engal!ed in business.

5. Representing, directly or indirectly, that respondent's publica- ~ion "The :Mining Manual," or any similar publication, is a standard reference work on mines and mining companies in the United States, or that it supplies the only up-to-date information service on mines published.

It is further ordered, That the respondent shall, within 60 days after service upon him o£ this order, file with the Commission a l'E>port in writing, setting forth in detail the manner and fonn in -which l1e has complied with this order.

698 FEDERAL TRADE COMMISSION DECISIOl\TS Syllabus 3-!l<'; T. C.