Walter Zulawinski and Louise Zulawinski, trading as Italian Accordion Manufacturing Company and Italia & P. Soprani Accordion Manufacturing Company

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WALTER ZULAWINSKI AND LOUISE ZULAWINSKI, TRAD- ING AS ITALIAN ACCORDION MANUFACTURING COM- PANY AND ITALIA & P. SOPRANI ACCORDION MANU- FACTURING COMPANY COMPLAINT, FINDINGS, AND ORDER IN REGARD TO THE ALLEGED VIOLATION OF SEC. 5 OF AN ACT OF CONGRESS APPROVED SEPT. 26, 1914 Docket 5830. Complaint, June 6, 1945—Decision, Feb. 28, 1946 Where two individuals engaged in the interstate sale and distribution of musical instruments, including: new, reconditioned, and used accordions and concertinas; through advertisements in trade journals and magazines, circulars, letterheads, catalogs, and other advertising media, directly or by implication— Represented that they had been accordion manufacturers since 1861; that their products were manufactured by Italia & P. Soprani Accordion Manufacturing Company; and that they were the manufacturers of the products they offered for sale and sold; had on hand all types and models of accordions; and gave prompt and satisfactory service on all orders for said instruments ; The facts being that they had been engaged in the sale and distribution of accordions only since 1941; there was no such manufacturer of accordions as the aforesaid company; they did not own, operate, or control any plant or factory for the manufacture of their products, but were engaged in the sale and distribution of accordions and other musical instruments acquired from others: did not have on hand all types and models of accordions, and were not in position to give prompt attention, service or delivery on orders received by them; and in filling orders, they attempted to substitute items other than those requested, at a price different from that indicated in their advertising matter ;

With tendency and capacity to mislead and deceive a substantial portion of the purchasing public, which has a marked preference for dealing directly with the manufacturer, in the erroneous belief that such representations were true, and thereby to induce it to purchase their said products: 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. Randolph Preston, trial examiner.

Mr. Jesse D. Kash for the Commission.

Law, Tate & Walsh, of Chicago, Ill., for respondents. 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 Walter Zulawinski ITALIAN ACCORDION MANUFACTURING CO., ETC. 83 82 Complaint and Louise Zulawinski, individuals, trading as Italian Accordion Manufacturing Co., and Italia & P. Soprani Accordion Manufacturing Co., hereinafter referred to as respondents, have 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. Paracrarn 1. The respondents, Walter Zulawinski and Louis Zulawinski are individuals trading as Italian Accordion Manufacturing Co., and Italia & P. Soprani Accordion Manufacturing Co., with their office and principal place of business at 323 West Polk St., Chicago, Vas Par. 2. The respondents for more than 2 years last past have been engaged in the sale and distribution of musical instruments, including new, reconditioned, and used accordions and concertinas. Respondents cause said products, when sold by them, to be transported from their aforesaid place of business in the State of Ohio to purchasers located in various other States of the United States and in the District of Columbia.

The respondents maintain, and at all times mentioned herein have maintained, a course of trade in said products in commerce among and. between the various States of the United States and in the District of Columbia. . Par. 3. In the course and conduct of their aforesaid business and for the purpose of inducing the purchase of their products, the respondents have circulated among prospective purchasers throughout the United States by United States mails, advertisements in trade journals and magazines, circulars, letterheads, catalogs, and other advertising media, all of general circulation, many false statements and representations concerning the nature of their business and the origin of their products. Among and typical of such false, misleading, and deceptive statements so made and disseminated, as aforesaid, are the following:

Italian accordions. Hand made. Very best. Lowest prices. Direct from factory representative. Send your name and address for free catalog. Italia & P. Soprani Acc. Mfg. Co.

Accordion manufacturers since 1861.

World’s best hand made accordions.

Buy direct from factory.

Receive prompt service and satisfaction.

Large stock of assorted accordions.

Italian Accordion Manufacturing Company.

Par. 4. Through the use of the foregoing statements and representations hereinabove set forth, and others similar thereto not specifically Complaint 42F.T.C.

set out herein, the respondents have represented, directly or by implication, that they have been accordion manufacturers since 1861; that their products were manufactured by Italia & P. Soprani Accordion Manufacturing Co.; that they are the manufacturers of the products offered for sale and sold by them in said commerce; that they have on hand all types and models of accordions; that they give prompt and satisfactory service on all order for said instruments. Par. 5. The foregoing representations are grossly exaggerated, false, and misleading. In truth and in fact the respondents have not been engaged in the business of manufacturing accordions since 1861, they have only been engaged in the sale and distribution of accordions since 1942. Their products are not manufactured by Italia & P. Soprani Accordion Manufacturing Co. In truth and in fact there is no such a manufacturer of accordions and said name is wholly fictitious. The respondents do not own, operate nor control any plant or factory for the manufacture of their products, but they are engaged in the sale and distribution of accordions and other musical instruments which are acquired from others. The respondents do not have on hand all types and models of accordions and are not in position to give prompt attention, service, or delivery on orders received by them. In filling orders the respondents did not and were not able to make prompt and satisfactory delivery but would attempt to fill orders by substitution with items other than those that the customer had requested, at a price different from that indicated in their advertising matter.

Par. 6. There is a marked preference on the part of a substantial portion of the purchasing public, for dealing directly with and buying from the manufacturer.

Par. 7. The use by the respondents of the aforesaid false, misleading and deceptive statements and representations has had, and now has, the tendency and capacity to mislead and deceive a substantial 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 respondent’s said products in commerce between and among the several States and in the District of Columbia. Par. 8. The aforesaid acts and practices of the respondents herein alleged are all to the injury and prejudice of the public and constitute unfair and deceptive acts and practices in commerce within the intent and meaning of the Federal Trade Commission Act. \ ITALIAN ACCORDION MANUFACTURING CO., ETC. 85 | 82 Findings :

: Report, Fryprnes as To THE Facts, AND ORDER Pursuant to the provisions of the Federal Trade Commission Act, the Federal Trade Commission on June 6, 1945, issued and subse- :quently served its complaint in this proceeding on the respondents, Walter Zulawinski and Louise Zulawinski, trading as Italian Ac- -cordion Manufacturi ing Co. and Italia & ie Siren Accordion :Manufacturing Co., aliens them with the use of unfair and de- _ceptive acts and practices in commerce in violation of the provisions | of said act. After the issuance of said complaint and the filing of the answer of the respondents thereto, a hearing was held before a trial examiner of the Commission Sanaae duly designated by it, :at which hearing a stipulation as to the facts was entered into by oral between the attorney for the Commission and the respondents through ‘their attorney, William H. Tate, Esq., 221 North Lasalle Street, Chicago, Ill., and read into the record. This stipulation provides that the rare therein set forth shall be taken as the facts in this |proceeding and in lieu of testimony in support of the allegations of the complaint or in opposition thereto and that the Commission may proceed upon said complaint and said statement of facts to make its report stating its findings as to the facts (including inferences which it may draw from said stipulated facts) and its conclusion based thereon and enter its order disposing of the proceeding without the presentation of argument or the filing of briefs. The respondents expressly waived the filing by the trial examiner of a report upon the evidence.

Thereafter the proceeding regularly came on for final hearing before the Commission on the complaint and stipulation as to the facts (such stipulation having been accepted and approved by the Commission) 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 THE FACTS Paracrary 1. The respondents, Walter Zulawinski and Louise Zulawinski are individuals trading as Italian Accordion Manufacturing Co. and Italia & P. Soprani Accordion Manufacturing Co., with their office and principal place of business at 323 West Polk Street, Chicago, II].

Par. 2. The respondents for more than 2 years last past have been engaged in the sale and distribution of musical instruments, in- Findings 42F.T.C.

cluding new, reconditioned and used accordions and concertinas. . Respondents cause said products, when sold by them, to be transported from their aforesaid place of business in the State of Illinois to purchasers located in various other States of the United States and in the District of Columbia.

The respondents maintain, and at all times mentioned herein have maintained, a course of trade in said products in commerce among and between the various States of the United States and in the District of Columbia.

Par. 8. In the course and conduct of their aforesaid business and for the purpose of inducing the purchase of their products, the respondents have circulated among prospective purchasers throughout the United States by United States mails, advertisements in trade journals and magazines, circulars, letterheads, catalogs, and other advertising media, all of general circulation, many false statements and representations concerning the nature of their business and the origin of their products. Among and typical of such false, misleading, and deceptive statements so made and disseminated, as aforesaid, are the following:

Italian accordions. Hand made. Very best. Lowest prices. Direct from factory representative. Send your name and address for free catalog. Italia & P. Soprani Ace. Mfg. Co.

Accordion manufacturers since 1861.

World’s best hand made accordions.

Buy direct from factory.

Receive prompt service and satisfaction.

Large stock of assorted accordions.

Italian Accordion Manufacturing Company.

Par. 4. Through the use of the foregoing statements and representations hereinabove set forth, and others similar thereto not specifically set out herein, the respondents have represented, directly or by implication, that they have been accordion manufacturers since 1861; that their products were manufactured by Italia & P. Soprani Accordion Manufacturing Co.; that they are the manufacturers of the products offered for sale and sold by them in said commerce; that they have on hand all types and models of accordions; and that they give prompt and satisfactory service on all orders for said instruments. Par. 5. The foregoing representations are grossly exaggerated, false, and misleading. In truth and in fact the respondents have-not been engaged in the business of manufacturing accordions since 1861; they have only been engaged in the sale and distribution of accordions since 1941. Their products are not manufactured by Italia & P. ITALIAN ACCORDION MANUFACTURING CO., ETC. 87 82 Order Soprani Accordion Manufacturing Co. In truth and in fact there is no such manufacturer of accordions and said name is wholly fictitious. The respondents do not own, operate, or control any plant or factory for the manufacture of their products, but they are engaged in the sale and distribution of accordions and other musical instruments which are acquired from others. The respondents do not have on hand all types and models of accordions and are not in position to give prompt attention, service, or delivery on orders received by them. In filling orders, the respondents did not and were not able to make prompt and satisfactory delivery at all times but would attempt to fill orders by substitution with items other than those that the customer had requested, at a price different from that indicated in their advertising matter.

Par. 6. There is a marked preference on the part of a substantial portion of the purchasing public for dealing directly with and buying from the manufacturer of accordions and musical instruments. Par. 7. The use by the respondents of the aforesaid false, misleading, and deceptive statements and representations has had, and now has, the tendancy and capacity to mislead and deceive a substantial 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, beeen of such erroneous and mistaken belief, to purchase respondents’ said products in commerce between and among the several States and in the District of Columbia.

CONCLUSION The aforesaid acts and practices of the respondents as herein found 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. ORDER TO CEASE AND DESIST This proceeding having been heard by the Federal Trade Commission upon the complaint of the Commission and a stipulation as to the facts entered into by and between counsel for the Commission and the respondents upon the record; and the Commission having made its findings as to the facts and its conclusion that the respondents have violated the provisions of the Federal Trade Commission Act. It is ordered, That the respondents, Walter Zulawinski and Louise Zulawinski, individually and trading as Italian Accordion Manufacturing Company and Italia & P. Soprani Accordion Manufacturing 701631—48—vol. 42 —9 Order 42¥.T.C.

Co., or under any other name, and their representatives, agents, and employees, directly or through any corporate or other device in connection with the offering for sale, sale, and distribution of musical instruments, including new, reconditioned, and used accordions and concertinas, in commerce as “commerce” is defined in the Federal Trade Commission Act, do forthwith cease and desist from: 1. Representing, directly or by implication, that respondents’ business was established in 1861 or at any time other than the date of its actual establishment.

2. Using the word “Manufacturing” or any other word of similar import or meaning in respondents’ trade name or representing in any other manner that respondents own, operate, or control a factory wherein their musical instruments are made.

3. Using the statement “Buy direct from factory” or any other statement of similar import or meaning in connection with the sale of musical instruments not manufactured by the respondents. 4, Representing, directly or by implication, that respondents are offering for sale all types or models of accordions or any particular musical instrument or any type or model of such instrument when respondents cannot, and do not, deliver musical instruments of the kind and quality so offered for sale.

lt is further ordered, That the respondents shall, within 60 days after service upon them of this order, file with the Commission a report in writing, setting forth in detail the manner and form in which they have complied with this order.

STEVENS CLOTHING MANUFACTURING CO., INC. 89 Complaint