New York Handkerchief Manufacturing Co.

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

IN THE MATIER OF NE"\V YORK HANDKERCHIEF MANUFACTURING COl\IPANX COMPLAINT, FINDINGS, .AND ORDER IN REGARD TO THE ALLEGED VIOLATION OF SEC. 5 OF AN ACT OF CONGRESS APPROVED SEPT. 26, 1914 Docket -9727. Complaint, Mar. 11, 1942-Decision, Nov. 30, 1942 Where a corporation, engaged at its pl(lce of business in Chicago, Ill., in the manufacture and interstate sale and distribution of handkerchiefs to, principally, jobbers and retailers- ( a) Represented that certain of Its. said products we1·e made in and imported from Ireland, or were made in tbe United States from materials imported from Ireland, through use of word "Erin" on paper wrappers enclosing the boxes in which it packed said brand in 5 dozen quantities, together with depletions of a harp and shnmrocks superimposed upon a background of traditional Irish green with "1\lade in U. S. A." at the bottom of the wrapper and in much smaller type; and through use of similar legends and depictions upon a green paper band which usually enclosed each dozen or half-dozen handkerchiefs within the box; and, occasionally, through use of said brand name upon a green sticker with depiction of a harp attached to top handkerchief of a lot in lieu of a band; and· (b) Represented further that its said products were linen,. through use on such wrappers, bands, and stickers of legend "Soft Linen Finish"; Notwithstanding the fact that the handkerchiefs thus branded were not made from linen of any kind, but were composed entirely of cotton; and were not Imported from Ireland or made of materials imported from Ireland, long famous throughout the United States for its linen products, which are preferred by a substantial portion of the purchasing public to those produced elsewhere; · With tendency ana capacity to mislead and deceive a substantial number of dealer and consumer purchasers, and thereby to cause them to purchase substantial quantities of said handkerchiefs; and with effect of placing in the hands of uninformed or unscrupulous dealers a means by which they might mislead and deceive the public:

Ileld, That such acts and practices, under the clrcumst11.nces set forth, were all to the prejudice of the public, and constituted unfair and deceptive acts and practices in commerce.

As respects the alleged false representation by a handkerchief manufacturer that its products were made in Ireland or of material from Ireland through use of word "Erin" as brand name on labels and wrappers thereof, together with depiction o! shamrocks: Use by said manufacturer of legend "Made in U. S. A." was nof sufficient, as contended, to pt·event deception of the public With respect to the origin of such handkerchiefs, entirely aside from tbe fact that such legend was branded in much smaller and less conspicuous type than the other words and would usually escape the attention of the purchaser. 722 FEDERAL TRADE COMMISSION DECIS]ONS Complaint 35F.T.C.

As respects alleged false representation by a handkerchief manufacturer that' its handkerchiefs were linen through use of word "linen" on attached brands and labels: The use of the word "finish" in such legends as "Soft Linen Finish" and ''Linen Finish" was not sufficient, as contended by the manufacturer, to apprise the publlc that the reference was to the finish rather than to the actual composition of the :aandkerchiefs, in view of the evidence; there being, moreover, serious doubt whether terms "Soft Linen Finish" and "Linen Finish" are recognized at au in the trade. Before Mr. Olyde M. Hadley, trial examiner. Mr. B. G. Wilson for the Commission.

Jacobson, Merrick, Nierman & Silbert, of Chicago, III., for respondent. . · 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 New York Handkerchief Manufacturing Co., a corporation, hereinafter referred to as respondent, has violated tlie provisions of 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 complaint, stating its charges in that respect as follows:

P ARAGRAPn 1. Respondent, New York Handkerchief Manufacturing . Co., is a corporation, organized, existing and doing business under and by virtue of the laws of the State of Illinois, with its office and principal place of business located at 1021 West Adams Street, Chicago, Ill.

PAR. 2. The respondent is now, and for some time last past has been, engaged in the manufacture of handkerchiefs and in the sale and distribution thereof in commerce between and among the various States of the United States·and in the District of Columbia. Respondent causes its said products, when sold, to be shipped from its said place of business in the State of Illinois to jobbers, retailers, nnd other purchasers thereof located 'in various other States of the United States and in the District of Columbia. Respondent maintains, and at all tiines mentioned herein has maintained, a course of trade. in its said products in commerce ·between anci among the various States of the United Stutes and in the District of Columbia.

PAR. 3. In the course and conduct of said business in said commerce, as aforesaid, respondent offers for sale and sells its said product to jobbers and retailers for resale to the general public under the trade name "ERIN." Said product, when sold by the respondent, NEW YORK HANDKERCHIEF MANUFACTURING CO. 723 721 Complaint is packed in a wrapper which bears, among others imprinted thereon, the following statement:

ERIN (Picturlzatlon of a harp) Men's Handkerchiefs Softest Linen Finish Linen Finish ERIN ERIN Men's Handkerchiefs Said statement and said picturization of a harp appear in gold on a background of traditional Irish green.

On certain of the handkerchiefs packaged in said wrappers respondent places a wrapper upon which appears the following statement, accompanied by a picturization of a harp, in gold on ·a background of traditional Irish green:

ERIN Handkerchiefs Soft Linen Finish Through the use of the word "ERIN" as a trade name for and on said handkerchiefs and the wrapper in which they are packaged, the picturization of a harp and the background of traditional Irish green, the respondent represents and implies that said handkerchiefs are manufactured in and imported from Ireland. Through the statements "Soft Linen Finish," "Linen Finish," used in connection with the word "ERIN," the picturization of a harp and a background of gJ;een as· aforesaid, respondent represents and implies that said h~ndkerchiefs are manufactur~ from linen produced in and imported from Ireland. Through the use of the statements "Soft Linen Finish," "Linen Finish" alone respondent represents that said ha~dkerchiefs are composed in whole or substantia]ly in part of linen. . PAR. 4. In truth and in fact respondent's said handkerchiefs are not manufactured in and imported from Ireland. Said handkerchiefs lire not manufactured from linen produced in Ireland or from linen at nll, but are composed wholly of cotton and contain no linen whatsoever. Said handkerchiefs are manufactured in the United States At respondent's place of business in Chicago, Ill. . PAR. 5. The word "ERIN" has long been associated by a substantial portion of the purchasing public with the country Ireland, and through long usage has become synonymous therewith, and when used as hereinabove alleged indicates to a substantial portion of the purchasing public a product of 'Irish origin or a product made from lDaterials of Irish origin. Ireland has long been famous throughout 724 FEDERAL TRADE COJHMISSION DECISI:ONS Findings 35F.T.C.

the United States for the excellent quality of its linen products and a substantial portion of the purchasing public prefers linens produced in Ireland to those produced elsewhere. Handkerchiefs manpfactured from linen are preferred by a substantial portion of the purchasing public to those manufactured from cotton.

PAR. 6. The aforesaid acts, practices, and methods of respondent ' have had and now have the capacity and tendency to and do mislead and deceive a substantial portion of the purchasing public into the erroneous and mistaken belief that said. products are manufactured from Irish linen in and imported from Ireland, or manufactured in the United States from linen imported from Ireland, and that said products are composed in whole or substantial part of linen, and cause jobbers, retailers, and other members of the purchasing public, because of such erroneous and mistaken belief, to purchase substantial quantities of respondent's said products to the injury of the public. PAR. 7. The aforesaid acts, practices, and methods of respondent place in the hands of jobbers and retailers purchasing for r~sale a means and instrumentality by and through which such jobbers and retailers may mislead and deceive the purchasing public. PAR. 8. The aforesaid acts, practices, and methods of the respondent as herein nlleged are all to the prejudice and injury of the public and constitute unfair and deceptive acts and practices in commerce 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 Act, the Federal Trade Commission, on March 11, 1942, issued and subsequently served its complaint in 'this proceeding upon the respondent,~ ew York Handkerchief :Manufacturing Co., a corpo~ation, charging it with the use of unfair end deceptive acts and practices in commerce in violation of the provisions of that act. After the filing of respondent's answer, testimony and other evidence in Fupport of the allegations of the complaint were introduced by the attorney for the Commission and in opposition thereto by the attorney for the respondent, before a trial examiner of the Commission theretofore duly designated by it, and such 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 Commission on the complaint, the answer there:. to, testimony and other evidence, report of the trial examiner upon .NEW YORK HANDKERCHIEF MANUFACTURIN'G CO. 725 721 · Findings the evidence, and brief in support of th~ complaint (no brief having been filed by respondent and oral argument not having been 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 1acts and its conclusion drawn therefrom . . FINDINGS AS TO THE FACTS PARAGRAPH 1. The respondent, New York Handkerchief Manufacturing Co., is a corporation, organized, existing, and doing business under and by virtue of the laws of the State of Illinois, with its office and principal place of business located at 1021 West Adams Street, Chicago, Ill. Respondent, is now and for a number of years last past, has been engaged in the manufacture, sale, ,and distribution of handkerchiefs.

PAR. 2: In the course and conduct of its business respondent causes and has caused its handkerchiefs, when sold, to be transported from its place of busin·ess in the State of Illinois to the purchasers thereof, principally jobbers and retail dealers, located in various other States of the United States and in the District of Columbia. Respondent maintains and has maintained a course of trade in its handkerchiefs in commerce among and between the various States of the United States and in the District of Columbia. PAR. 3. Among the various brands or lines of handkerchiefs manufactured and sold by respondent is a brand designated by respondent as "Erin." These handkerchiefs are packed 5 dozen to a box, and each box is wrapped in a paper wrapper on which there appears, in large type, the following:

E·R IN White Bleached' Mens HANDKERCHIEFS Soft Linen Finish In connection with this lettering there also appear picturizations of a harp and shamrocks, the national flower of Ireland, all being superimposed upon a background of traditional Irish green. At the bottom of the wrapper, and in much smaller type than the other legends, is the legend "Made in U. S. A."

Around each dozen or half-dozen handkerchiefs within the box is usually placed a paper band which, like the outside covering of the package, is green in color, and which bears substantially the same legends, together with the picturization of a harp. Occasion- 726 FEDERAL TRADE CO:MMISSION DECISIONS Findings 35 F.T.C. ally, instead of using this band, respondent places on the top hand· kerchief in the dozen or h~lf-dozen lot a sticker which reads: ERIN M e n HANDKERCHIEFS Soft Linen Finish This sticker is also green in color and bears, along with the lettering thereon, the picturization of a harp.

PAR. 4. The name "Erin" has long been associated by a substantial portion of the purchasing public with the country Ireland, and is understood by such portion of the public as being somewhat synonymous with the name "Ireland." The Commission finds, therefore, that the use of the word by respondent to designate and describe its handkerchiefs constitutes a representation that such handkerchiefs are manufactured in and imported from Ireland, or that they are manufactured in the Unted States from materials imported from Ireland. · The effect of the use of the word "Erin" is accentuated through the picturizations of the harp and shamrocks, .and through the use of the green background.

The Commission finds, further, that through the use of the word "Linen" in the legends "Soft Linen Finish" and "Linen Finish," respondent represents and implies that its handkerchiefs are made of linen.

PAR. 5. The handkerchiefs so designated and described by respond- €nt are not in fact made from linen of any kind, but are composed entirely of cotton. Neither the handkerchiefs nor the materials of which they are made are imported from Ireland. The handkerchiefs are manufactured at respondent's place of business in Chicago, Ill., from cotton fabric obtained in the United States. PAR. 6. Ireland has long been famous throughout the United States for its linen products, and a substantial portion of the purchasing public prefers linens produced in Ireland to those produced elsewhere. Handkerchiefs made of linen are preferred by a substantial portion of the public to those made of cotton.

PAR. 7. It is insisted by respondent that the use on its wrappers. and bands of the legend "l\Iade in U. S. A." is sufficient to prevent any deception of the public with respect to the origin of its handkerchiefs. Aside from the fact, however, that this legend is printed in much smaller and less conspicuous type than the other words appearing on the wrappers ~nd bands, and would usually escape the attention of NEW YORK HANDKERCHIEF MANUFACTURING 00. 727 721 Order · the average purchaser, it is insufficient' to negative respondent's impli- -cation that the handkerchiefs are manufactured from ·material imported from Ireland.

Respondent further contends that the inclusion of the word "Finish" in its legends "Soft Linen ~inish" and "Linen Finish" is sufficient to apprise the public that the reference made by the legends is to the finish rather than the actual composition of the handkerchiefs. The evidence discloses, however, that the word "Linen" as here used is misleading, even though it be accompanied by the word "Finish." Moreover, there is serious doubt whether the terms "Soft Linen Fin- ,.. ish" and "Linen Finish" are recognized at all in the trade. . PAR. 8. The acts and practices of respondent have the tendency and ~apacity to mislead and deceive a substantial number of dealers and members of the purchasing public with respect to the origin, composition, and character of respondent's product, and the tendency and -capacity to cause such dealers and members of the public to purchase substantial quantities of respondent's product as a result of the <lrroneous and mistaken belief so engendered. Sw;h acts and practices serve also to place in the hands o£ uninformed or unscrupulous dealers a means and instrumentality by which such dealers may mislead and deceive the purchasing public.

CONCLUSION The acts and practices of the respondent as herein found are all to the prejudice of the public and constitute unfair and deceptive acts and practices in commerce within .the intent and meanmg of the Federal Trade Commission Act.

ORDER TO CEASE AND DESIST This proceeding having been heard by the Federal Trade Commission upon the complaint of the Commission, the answer of respondent, testimony, and other evidence in support of and in opposition to the allegations of .the 'complaint taken before a trial examiner of the Commission theretofore duly designated by it, report of the trial examiner upon the evidence, and brief in support of the complaint (no brief having been filed by respondent and oral Jtrgu- Inent not having been requested),.and the Commission having made its findings us to the fads and its conclusion that the respondent has '\'iolated the provisions of the Federal Trade Commission Act. It is ordered, That the respondent, New York Handkerchief Manufacturing Co., a corporation, and its officers, agents, representatives, and employees, directly or through any corporate or other device, in connection with the offering for sale, sale, and distribution of re- 728 FEDERAL TRADE CO:MMISSION DECISIONS Order 35F.T.C.

spondent's handkerchiefs in commerce, as "commerce" is defined in the Federal Trade Commission Act, do forthwith cease and desist from:

1. Using the word "Erin," or any other word indicative or suggestive of the country Ireland, to designate or describe handkerchiefs which are not in fact imported from Ireland or made of materials imported from Ireland.

2. Using the word "Linen," or any simulation thereof, alone or in combination with any other word or words, to designate or describe handkerchiefs which are not in fact made of linen. 3..Misrepresenting, through the use of picturizations, or by any other means, the place of origin of respondent's products or materials of which such products are made.

It is further ordered, That the respondent shall, within 60 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.

MARVE~ LABORATORIES 729 Complaint