Simmons, Paul J

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IN THE MATTER OF PAUL J. SIMMONS, DOING BUSINESS AS HARLEM COMPANY COMPLAINT, FINDINGS, AND ORDER IN REGARD TO THE ALLEGED VIOLATION OF SEC. I! OF AN ACT OF CONGRESS APPROVED SEPT. 26, 1914 Docket 48.~3. Complaint, Sept. 30, 194:2-Decision, Feb. 23, 1943 \ Where an individual, engaged in interstate sale and distribution of jewelry and novelties; in advertisements in periodicals and in pamphlets, folders, and other advertising matter- - (a) Represented that rings advertised to sell for $1 each were set with real diamonds, through such statements as "Real Diamond Ring Simulated"; the facts being said products were set with imitation stones; (b) Represented that a matching wedding band was "given free" with each purchase of a diamond ring, through such statements as "Free Matching Wedding Band Set With Flashing Stones" and "To Introduce This Amazing Value We Offer a Matching Band Absolutely Free": when in fact their cost was included in purchase price of th~ ring, and they formed part of a combination offer; and (c) Made use of term "yellow or white gold effect" in describing his rings, with tendency and capacity to confuse purchasers as to whether such rings were made of metalllc gold, or merely had a gold color: \:he facts being they contained no appreciable amount of gold, either yellow or wl}.ite; With effect of misleading and deceiving a portion of the purchasing public into the mistaken belief that such representations were true, thereby inducing its purchase of said jewelry:

Held, That such acts and practices, under the circumstances set forth, were all to the prejudice and injury of the public and constituted unfair and deceptive acts and practices in commerce.

Before Mr. Clyde M. Hadley, trial examiner. Mr. B. G. Wilson for the Commission.

J./r. George Landesman, of New York City, for respondent. 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 Paul J. Simmons, an individual, trading as Harlem Co., hereinafter referred to as respondent, has violated the 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:

PARAGRAPH 1. Respondent, Paul J. Simmons, is an individual, trading as Harlem Co., having his office and principal place of business located at 30 Church Street, New York, N.Y. HAIRLEM 00. 227 226 Complaint The respondent is now, and for more than 2 years last past has been, engaged in the business of offering for sale, sale, and distribution of jewelry ancl novelties to purchasers thereof in commerce between and among the various States of the United States, and in the District of Columbia. • Respondent causes his said products, when sold, to be shipped from his said place of business in the State of New York to purchasers thereof located in various other States of the United States, and in the District of Columbia.

Respondent maintains, and at all times mentioned herein has maintained, a course of tratle in said jewelry and novelties 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 his said business, and for the purpose of inducing the purchase of his jewelry, the respondent has disseminated false ancl misleading statements and representations with respect to his said product~. Such false and misleading statements and representations have been inserted in magazines having a general circulation, and also in pamphlets, folders, and other advertising matter distributed to purchasers and prospective purchaserssituated in various States of the United States. Among and typical of such false and misleading statements and representations are the. following:

Heat dlam:ond ring, simulated $1.00.

Free I Matching wedding band, set wlth :flashing stones. Free I To introduce this amazing value we offer a matching band absolutely • free. · Yellow or white gold effect.

PAn. 3. Through the use of the foregoing statements and representations, and others of similar import, not ~Specifically set out herein, the respondent represents, and has represented, directly and by implication, that his rings so advertised to sell for $1 each are in fact set with "real" diamonds; that said rings contain an appreciable amount of yellow or white gold; and that a matching wedding band is given "free" to each purchaser of a diamond ring. PAR. 4. The foregoing statements and representations disseminated by the respondent in the manner aforesaid are false, misleading, and deceptive. In truth and in fact, said rings offered for sale and sold by respondent at $1 each do not contain real diamonds, but are set with imitation stones. The rings represented as being gold do not contain any appreciable amount of gold, either yellow or white. Said ,wedding bands offered free to each purchaser of a ring are not given free to each purchaser thereof, but the cost of such wedding band is 228 FEDERAL TRADE COMMISS'ION DECISIONS Findings 36F.T.C.

included in the purchase price of said rings, and such rings 'form part of a combination offer.

PAR. 5. The use by respondent of the foregoing false, deceptive, nnd misleading statements, representations, and advertisements with respect to respondent's jewelry ltas had, and now has, the capacity and tendency to, and does, mislead and deceive a substantial portion of the purchasing public into the erroneous and mistaken belief that such statements and representations are true and induces a substantial portion of the purchasing public, because of such erroneous and mistaken belief, to purchase substantial quantities of respondent's said products.

PAR. 6. The aforesaid acts nnd practices of the respondent as herein alleged are all to the prejudice and injury of the public, and constitute unfair and deceptive acts and practices in co~rneree ·within the intent and meaning of the Federal Trade Commission Act. REPORT, FINDINGS AS TO THE FACTs, AND OuoER Pursuant to the provisions of the Federal Trade Commission Act, the Federal Trade Commission on September 30, 1942, issued and subsequently served its complaint in this proceeding upon respondent, Paul J. Simmons, an individual, trading as Harlem Co., charging l1im with unfair and deceptive acts and practices in violation of the provisions of said act. After the issuance of said complaint and filing of respondent's answer thereto, at a hearing before an examiner • of the Commission theretofore duly designated by it, a stipulation as to the facts was read into the record in lieu of testimony in support of the charges stated in the complaint and in opposition thereto, and it was agreed that the Commission may proceed upon said statement of facts to make its findings as to the facts and its conclusion based thereon and issue its order disposing of this proceeding \vitliout the presentation of argument or the filing of briefs. The respondent expressly waived the filing of a rrport upon the evidence by the trial examiner. Thereafter this proceeding came on for final hearing before the Commission on said complaint, answer, and stipulation as to the facts; 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. FINDINGS AS TO Tile FACTS PARAGRAPH 1. Respondent, Paul J. Simmons, is an individual, trading as Harlem Co., having his office and principal place of busi- HARLEM 00. 229 22G Findings ness· located at 30 Church Street, New York, N.Y. The respondent is now, and ~or more than 2 years last past has been, engaged in the business of selling and distributing jewelry and novelties. Respondent causes his said products, when sold, to be shipped from his said place of business in the city of New York to purchasers thereof located in various ot:ier States of the ·United States and in the District of Columbia. Respondent maintains, and at all times mentioned herein has maintained, a course of trade in said jewelry and novelties in commerce between nnd among the various States of the United States and in the District of Columbia. PftR: 2~ ~n the course and conduct of his said business, and for the purpose of inducing the purchase of his jewelry, the respm1dent has disseminated misleading statements and representations with respect to his said products. Such misleading statements and representations have been inserted in magazines having a general circulation and also in pamphlets, folders, and other advertising matter distributed to purchasers and prospective purchasers situated in various States of the United States. Among and typical of such misleading statements and representations are the following: Real Diamond Ring Simulateu, $1.

Free Matching Wedding Hawl Set With Flashing Stones. To Introduce This Amuziug Value We Offer a Matching Dand Absolutely Free.

~AR. ,3. TI~ro\1gh the use of the foregoing statements and representations, and others of similar import not specifically set out herein, the respondent represents, and has represented, directly and by implication, that his rings so advertised to sell for $1 each are, in fact, set with real diamonds and that a matching wedding band is given "free" to each purchaser of a diamond ring. PAR. 4. The foregoing statements and representations disseminated by the respondent in the manner aforesaid are misleading and deceptive. In truth and in fact, said rings offered ior sale and sold. by respondent at $1 each do not contain real diamonds but are set with imitation stones. The rings do not contain any appreciable amount of gold, either yellow or white. Said wedding bands offered "absolutely free'' to each purchaser of a ring are not given free to each purchaser thereof, but the cost of such wedding band is included in the purchase price of the ring required to be purchased and such wedding band forms part of a combination offer. PAR. 5. ·The Commission further finds that respondent used the term "yellow or white gold effect'' to describe the rings which he ojl'e,red ior sale. Re~pondent stated that he did not intend the use of such phrase to constitute a representation that such rings contained 230 FEDERAL 'l'R.ADE COMMISSION DECISIONS Order 36F.T.C.

an appreciable amount of either yellow or white gold, but he also admitted, and the Commission finds, that the use of such phrase does in fact have the capacity and tendency to confuse a portion of the purchasing public with respect. to whether such rin(J's are in fact . e made of metallic gold or merely have a gold color. PAn. 6. The use by the respondent of the foregoing deceptive and misleading statements, representations, and advertisements with respect to respondent's jewelry has had, and now has, the capacity and tendency to, and does, mislead and deceive a portion of the purchasing public into the erroneous and mistaken belief that such statements and representations are true and to induce a substantial portion of the purchasing public, because of such erroneous and mistaken belief, to purchase substantial quantities of respondent's said products. · · ' CONCLUSION 'The aforesaid acts and practices of the respondent as herein found ·are all to the prejudice and injury of the public and constitute urifair and deceptive acts and practices in commerce .within the intent and meaning 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 Commission1 respondent's' answer1 and a stipulation as to the facts entered into by and between counsel for the Commission and counsel for the respondent upon the record; 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, Paul J. Simmons, an individual, trading as Harlem Co., or trading under any other name, his repre· sentatives, agents, and employees, directly or through any corporate or other device in connection with the offering for sale, sale, and .distribution of jewelry and novelties in commerce as "commerce" is defined in the Federal Trade Commission Act, do forthwith cease and desist from:

1. Using the term "real diamond rings simulated," or any other term of similar import or meaning, to describe or in any way refer to rings which are made with imitation stones, or otherwise representing that rings which are made with imitation stones are made w~ili~oo~ ' ; 2. Using the term "yellow or white gold effect," or any other term .of similar import or meaning, to in any way describe or refer to :rings which do not contain an appreciable amount of metallic gold. HARL:EM CO. 231 226 Order 3. Representing in any way that an article which is in fact part of a combination offer is a free gift, or is given free or without cost, or representing that any article which may be obtained upon the purchase of another article is given free or without cost. It i8 further ordered, That respondent shall~ within 60 days after service upon him of this order, file with the Commission a report in writing, setting forth in detail the manne,r and form in which he has complied with this order.

232 FEDERAL TRADE COMMISS'ION DECISIONS Syllabus 36F.T.C.

IN THE Matrer OF