Standard Sewing Equipment Corporation and; William J. Hackett and Harry Kron

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IN THE MATTER OF STANDARD SEWIKG EQUIPME T CORPORATION AXD WILLIAM J. HACKETT A D HARRY KRON OlmER, OPINION , ETC. , 11\ REGARD TO Tile ALLEGED VJOLATIOX OF SEC. ;) OF Tln FEImHAL TRADE COl\DIISSIOK ACT Docket 58S8. Complaint, July 1953 Decision, May, 1955 Orrler requiring an importer in ?\ew York City of sE'\'dng machine heads on ",-which appeared the words " lade in Occupied Japan " or "Japan " and of completed sewing machines in the assembling of "bieh those \vorc1s on the heads were cOllcealed by attachment of the motor, to cen e offering their products for sale without clear and conspicuous disclosure of the country of origin of the beads, and to cease using the brand or trade name " GniYel'sal" without using in connection therewith111n legible and dearly visible marking their corporate name.

Berore Mr. Frank Bier hearing examiner.

Mr. W-iiam L. Taggart and Mr. Ames TV. 1Villiams for the Commission.

Schnader, HW'i'ison, Segal Lewis of Philadelphia, P'l. , and Holtz & Rose or Boston, :Mass., ror respondents.

Oarretta Oo"nihan of Washington, D. also representeel Standard Sewing Equipment Corp. and .William J. Hackett. TX lTL'lJ DECTSIOX BY :nL\XK J-TlEH , HEc\HIXG 1-.:.\:1 lXEI Pursuant t.o the provisions of t.he Federal Trade Commission Act the Federal Trade Commission on June 27 , 1951 , issued and subsequently served its complaint in this proceeding upon respondents Standard Sewing Equipment Corporation, a corporation, and \Villiam .J. Hackett and Harry Kron, individually and as offcers or said corporation, charging them with the use or unrair met.hods OT competition and unfair and deceptive acts and practices in commerce in violation of the provisions of said Act. Arter the issuance of said complaint and the filing or respondents' answer thereto, hearings were held at. which testimony and other evidence in support or and in opposition to the allegations of said complaint were introduced berore the above-named hearing examiner, theretofore duly designated by the Commission, and said tE;stimony and other evidence were duly recorded and filed in the offce of the Commission. Thereafter the proceeding regularly came on for fina.l consideration by said hearl As amended.

STA::DARD SEVnNG EQUIPMENT CORP. ET AL. J013 1012 Findings ing examiner on the complaint, the answer thereto, testimony and other evidence, proposed findings as to the facts and conclusions presented by counsel; and said hearing exmniner having duly considered the record herein, finds that this proceeding is in the interest of the public and mak s the following findings as to the facts, conclusions drawn therefrom, and order:

FINDINGS AS TO THE FACTS P ARAGRAPll 1. Respondent Standard Sewing Equipment Corporation is a corporation organized and existing under and by virtue of the laws of the State of Ne" York with its offce and principal place of business located at 114 IV. 27th Street, New York, New York. Respondents IVilliam J. Hackett and Harry Kron, are President and Secretary-Treasurer, respectively, of corporate respondent and acting as such offcers formulate, direct and control the policies, acts and practices of said corporation, their addresses being the same as that of the corporate respondent. There is no other offcer, employer tgent 01' representative of corporate respondent, who has any control, authority or responsibilities over its acts and practices. PAR. 2. Respondents are now and have been for several years last past, engaged in the sale of sewing machine heads imported frolll Japan by them, and of completed sewing machines of which such heads are a part, to retailers who, in turn, resell to the purchasing public. In the course and conduct of their business, respondents ctwse their said products, when sold, to be transported from their place of business in the State of Kew York to the purchasers thereof-located in the various other States, and maintain and at all times mentioned herein have maintained a course of trade in said products in conmlCrce among and between the various States of the LTnited States. Theil' volume of trade in said commerce has been anel is substantial. PAR. 3. Hespondents first began the importation of these sewing machine heads manufactured in J apan in the early months of 1949. Such machines had a gold deealcomania embossed or imprinted on the " or ":Madeblack enamel of the sewing machine head, reading "3 apan in Occupied Japan" just abo,e the bed plate of the head on the rear of the vertical a,rm. These sewing machine heads are designed for electrical operation and .when a motor is attached thereto at the only place lwo,idee! for it, on the rear of the vertical arm, the aforesaid elecaleoma,nin marking, showing the origin of the machine head, is effectively concealed from even careful inspection, short of removing the motor, or of turning the machine into a,n awkward and unusual s sta,ndpoint, which a,ction wouldposition, from the ordinary user 51 F. T. C. Findings eventuate only from a desire to see that particular spot but entirely unlikely to ensue from ordinary or normal use of the machine. There is substantial evidence in the ;ecord, that purchaser-users never S this concealed 111arking, or suspected the foreign origin of their purchases, at least until it was called to their attention by someone familiar with these machines and the marking. The fil1ding is that such marking is for practical purposes, and to the ordinary user 01' purchaser completely and effectively concealed.

PAR. 4. Sometime prior to June 1, 1949, the Bureau of Customs of the V. S. Treasury wrote corporate respondent that it was necessary in order for these above-described maehiDe heads to pass through customs Jcgally, that it require that the marking indicating the country of origin, appear on the face of the machine in a place where it was not likely to be defaced, covered, or obscured by combination ,,,ith a.ny other article, that the method of marking should be legible, indelible and permanent, and the approved forms of marking included die stamping, the use of a metal plate bearing the name. of the country of origin, and stamping, or the use of the type of decalcomania which is not readily removed by ordinary washing with normal solvents. Thereafter respondents adopted, with the approval of the Customs authorities, n. metal medallion, hexagonal or oval in shape nbont l1j2 inches vertical and 1 inch horizontal, in gold or brass finish: befu.ing the legend "De Luxe" in raised qnarter inch letters, and below that De Luxe Family Sewing l\fachine Quality " in raised letters approximately in length, and below that the word apan" in raised letters of approximately " in length, and ordered their tTaprmese suppliers to attach them to all machines by rivets in the front of the vertical arm. Since the middle l) 1rt of 10-10 al1 se\ving machine heacls imported by respondrnt J18ve been so marked. P). l1. t). These br:l or brass-colored medallions or plaqnes arc in bright . old rolor, in small raised letters only of the same calm'. 'with no b2ckgronnd eoloring to emphasize the raised letters, so that the vI'I'd "Japan " is indistinct, diffcult to refLc1 at a distance of greater than a. foot, unemphasizecl and distinguishable only by careful inspection. There is also suffcient evidence in the record that users and purchasers did not see, or eeing, did not cOlnprehenc1 such marking. PAIL 6. \Vhen this marking is taken with the additional facts that the motor attached by respondents to these rnachines bear metal labels reading " l1iversal Tac1e in U. S. A. Delco 1\lade in Rochester K. Y. Simplex-J\iade in U. S. A. " or "Universa.l sewing machine motor-made in U. S. which labels are plainl)' Jegib1e and conspicuous when the machine head is viewed from above; that the book STANDARD SEWI G EQUIP::1E:NT CORP. ET AL. 1015 1012 Findings or instructions given "when the machine is sold to consumers, nowhere mentions the place of manufacture of the machine, that the two examples of periodical advertising by the respondent themselves in the record, and that live or the seven examples or dealer adver6sing, in some instances partially subsidized by respondents nowhere mention importation or the origin of the machine and that the brand name universal" appearing on the front and across the top of the horizontal arm, conspicuous and legible at many feet distance, is part of the corporate lU1l1e, or is the brand name or 11 number of American concerns, manufacturing and selling in the rnited States, some of them nationally known, it is plain that ma,ny consumer-purchasers :ould be, and are deceived into the belief, as t.he record shows, that respondents: Universal sewing machines are made in the United States. The finding accordingly, is that respondents: imported se\\ing machines and se"ing machine heads, arc not adequately marked to show their place of manufacture or origin.

AR. 7. The facts that respondents at no time directly represented their imported se"ing machines as being made in the United States or would refuse to sell any dealer who did so, or t.hat respondents dealers a.re under no misapprehension as to the place of manufacture or origination or that. respondents have never rec.elyecl any complaint as to Cllstomer confusion as to place of origin arc immaterial He sponclents by plncing in the hands of the,se dealers, their sewing machines as horoinu.hoye described have provided those dealers with the means and instrumentu.lity -whereby the purchasing public may be and is, misled and deceived as to the place of origin of sa.icl machines. This is emphasize.d by the substantial evidence in the record that these riveted medallions or plaques can be removed with comparative ease without the mad;:;: of remunLl being discernible except upon the filled "in Ivith n blackclosest inspection. Even the rivet holes can be filler. There is al o substantial evidence in the record that even when such holes arc left gaping, that users took such hoJes to be for oiling the machine rather than to indicate the removal of something originally a part of the machine.

\R. 8. X at "II, but a substantial portion of the purchasing public has a decided preference for products of domestic manufacture over those of foreign rnake, particularly machinery of any kind, and when sewing machines are exhibited fmcl offered for sale to the purchasing , or arc inadequatelypublic and such articles are not marked at all marked to show their foreign origin, or if marked and the markings are conce lled, removed, or obliterated: such purchasing public understands and believes such articles to be wholly of domestic origin. : .

1016 FEDERAL TRADE COMMISSlOX DECISlONS Findings 51 F. T. C.

PAR. 9. The complaint alleges and the evidence shows that respondents' invoices and form letters which go to respondents ' dealers (respondents do not deal with the consuming public) bear the legend :Manufacturers and wholesale djstribl1tors sewing machines and supplies" immediately beneath corporate respondents' name and that respondents do no manufacturing and neit.her own nor control any factory. The complaint further alleges that substantial numbers of retailers prefer to buy products frolll concerns who manufacture t.he products sold by them. Of this there is no substantial evidence in the record. Although tlVO of respondents' dealers were "witnesses in this proceeding, nothing on this point Was asked t.hem. These dealers know that respondents' se' xing machines \Were made in Japan and for aught that. appears may have likewise been aware that respollc1ents bought them rather than manufactured them, or may have been wholly indiff' erent.

PAR. 10. Corporate respondent was organized in 1946, for the purpose of selling in the United States imported Se1Ylllg machines, it being the first importer to do so, and for approximately two years it imported and sold in the United States the English made ':Jones under that. name. Being unable to secure suffcient of these machines corporate respondent turn eel to an Italian factory from which it importeel sewing machines for a short time in 1948. These machines had a foreign brand name, \which respondents decided would hamper rather than aid domestic merchandising and considered the adoption and use first of the HaIne "Standard " but learned upon attempting to re,gister it as a trade-mark "that there were some complications 2nd thereupon decided on "Universar' a H trilde name. The latte1' name, however, had been rc:;istcl'ed a; H trade-mark by the ",Yhite Sewing J\iachinc Company of Clcyeland, Ohio, for llse on sewing machines, but app,H'cllJy .it had not been so ll cc1 for a n;' ll1ier of years. 1\pspondcnts' attorneys succeeded in having the registJ' ition cancelled for non-user by the U. S. Pat,ent Once 1Jd on A.april 4 1950, the latter issued a trade-mark registration to respondents for the name Universal to be used on s8"\Ying machines and it was thereafter put on a majority of the sc 'ing mnchin8 hea, ds "\yhieh respondents imported from Japan by respondents' ve,ndors in .Japan, by gold decalcomania across the front, and sometimes also on the t.op of the horizontal arm. Respondents since that time have prevented by S0111e 25 leo- tl actions the lise of this brand name ""Gniversal" on sewing maebines marketed bv others, and have undertaken to have their dealers listed in the cl;ssified section of telephone directories al1listed1 Imdel' t.he brand name of 17universal sewing 11lac1111185 s well as legis, STANDARD SEWIKG EQUIP:\ENT CORP. ET AL. 1017 1012 Findings tering each brand name in foreign col1ntries\\here respondents have dealers.

PAR. 11. The brand name "Universal" appearing frequently but not always surrounded by a line tracing suggestive of a dog bone in shape, has also been registered by the U. S. Patent Of!ee in favor of Landers Frary & Clark of Kc,,, Britain Connecticut, for USe on a wide va-ricty of kitchen and household appliances, the original registrations dating back as far as 190G, 1914 and 1916 and the more recent registrations applicable to electrical household appliance being dated in 1933 and since. This firm advertises and sells nationally and extensively through dealers; electric tORsteTs, coffee pots, food mixers blenders, irons, gri11s, wafie irons, heating pads, small stoves, blankets Vacuum sweepers, floor poEshers, and other household gadgets collectively known as light traffc appliances. These products are extensively advertised, widely sold through thousands of retail distributors and are \\c11 and favorably knQ\vJ1 to a very substantial portion of the purchasing public, particularly the feminine part thereof. The 11ame "Universal" is stamped on many oi these products unsurrounded by any clog bone etching. Neither at the time of respondents' second registration as a trade-mark of the name "Universal" for use on their sewing machines nor since, did Landers, Frary & Clark file or make any protest. Respondent Hackett testified that he had had some negotions ,"\-ith the "Cniversal )'lajor Electrical Appliance Company of Lima, Ohio, manufacturers and distributors of the heavier household electrical appliances such as washers, dryers, water heaters stovBS under the brand name of "Universal" by agreement with Landers, :Frary & Clark, as to the former acti.ng as distributor for respondents' Fniversa1 sp, wing machines. Keither it nor Landers Frary & C1nr: 11:1H'. ever m::uwfadurec1 or sold s8\Ying machines nor do they have tlll:ir bra.nd name rCf!istereL1 for use On sewing machines. Landers, Frary & Clark also dii:tributes vaCUUll: l)ottles, food choppers, vacuum cleaners, food freezers and coffee l1wkers under other brand names than "Universal.

PAR. 12. . In addition to this, respondents have shown there are some 356 listings in the )'Ianhattan telephone. directory of corporations or organizations part of whose business name is the word "Lniver.sD 1" nd some 85 similar listings in the Phi.ladelphia teJephonc director.-. that the U. S. Patent Offce has issued trade-mark reg. ' l',ltio;'s to 6-1 business concerns throughout the country for the brand lWlle "Universal" of which five are to Landers, Frary & Clark and of which three, other than respondents, are to concerns using such trade names on sewing machines and that there are eighteen state registrations of this trade name in twelve states, although lione on sewing machines. 1018 FEDERAL TRADE COM nSSIOX DECISJOXS Findings 51 F. T. C.

Respondents and their dealers have also advertised "1Jniversal" sewing machines locally to a considerable extent and such machines are Jjsted in the catalogs of mail order houses and sold in department stores, Such advertising always bears corporate respondents' name or that of the dealer.

PAR. 13. The evidence as to consumer confusion over the name "Uniyersal" is in some conflict. It \yas stipulated that respondents could produce approximately ten purchasers of respondents: machines who would, if called, testify that the name "Universal" thereon did not indicate to them any connection with Landers, Frary & Clark. On the other hanel, more than twenty ,vitnesses in two different locations most of them hOllsewi Yes, testified in considerable detail that they 'ivere clncl had been for some time familiar with the Universa.l household electrical appliances sold by Landers, Frary & Clark and with the brand name "Universal" identified therewith, either from seeing advertisements thereof, from ownership, either by gift or purchase, or from see.ing or using such appliances in the homes of relatives or friends, that they had a high regard for the utility and durability of .such appliances, that when they were s11O\vn respondents' Universal ewjng machines they received the impression that the latter were made by the same company-Landers, Frary & Clark, which made the Uniyersar' appliances, that some of them were not told differently by the sales person and in several instances, had that impression given them or strengthened by the salesman s conversatiol1 that they bought respondents' sewing machines under that impression and for that reason, These ,witnesses were all cross-exmninccl at length and the detail of their testimony as ,yell as their number makes the evidence substantially preponderant that the brand name identity does confuse consumer-purchasers and does deceive them into buying respondents sewing machines, believing them to be made by and sponsored by Landers, Frary & Clark. In addition thereto is the testimony of the Assistant District Attorney at Fort worth, Texas, of the results of his investigation, pursuant to many complaints from purchasers, into the distribution in that area through one of respondents' dealers, of respondents' se,ving machines, that many purchasers had bought them in the belief that they were made in the United States by Landers Frary & Clark. On the record in this proceeding, it is immaterial that occasionally the word "l7niversaP on the products or Landers, Frary & Clark appears within a dog-bone frame on some of their advertising whereas respondents Universal" does not, or that respondents occasiona.ly emboss theirs on a globe whereas Landers, Frary & Clark do not.

STANDARD SEWING EQUIPMEKT CORP. ET AL. 1019 1012 Conclllions PAR. 14. The record shows at least one dealer displaying and seJJing to the conSllmer public in t.he same store respondents' Universal sewing Inachines and Landers, Frary & Clark's lTniversal vacuum cleaners. It also shmvs that respondents' IJniversal sc\ving machines ate offered for sale by a number of department stores.

PAT: 15. Hespondents 0)' placing in the hands of dealers, their sewing-machine heads and completed sewing machines of which the hea, are a part as descl'ibecl above, provide said dealers with a means and inst.rumentality whereby they may and do mislead and deceive the purchasing public as to the origin, manufacture and sponsorship of sajcl machines.

PAR. 10. Respondents in the course and conduct of their business a.rc in substantial competition in commerce with the makcrs and sellers of non-imported machines and also with sellers of imported machines. PAR. 17. The fa-ill1re of respondents adequately to disclose on their sewing-machine heads that they are manufactured in .Japan, and the nse by respondents of the brand or trade name "Universal" thereon has the tendency and capacity to lead substantial numbers of the purchasing public into the erroneous anc1mistaken belief that respondents machines arc of dOlne,stic origin and arc manufactured in the United States by the makers or distributors of lJniversal electrical household appliances, Landers, Frary & Clark, and to induce the purchase of substantial numbers of said se,ying machines because of such erroneous and mistaken belief. As a. result thereof, trade in commerce has been and ma.y be unfairly diverted to respondents from their competitors and substantial injury has been and is be,ing done to competition in commerce.

PAR. 18. The aforesaid wts and practices or respondent as hereinabove fU111Ll arc all to the prejudice and injury of the public and of rcsponde,nts: competitors and constitute unfair methods of competition and unfair and deceptive acts a,nd practices in commerce within the intent and meaning of the Federal Trade Commission Act. CQ)/CLl.' SIOXS 1. The foregoing findings of fact arc not based in anywise on t.he testimony appearing in the record at pagcs 1;11-200; 227-339; 399--36; which testimony 1uts been ignored and is rejected for lack of credibility and weight bee-nuse the witness' demeanor under examination and because the testimony elicitec1under cross-examination of the witness clearly demonstrated to the l--enting Examiner that such t.testimony was l Ut objective, but all the contrary Iyas biased. The printed ex- &;

1020 FEDERAL TRADE COMlIISSION Decisioxs Conclusion 51 F. T. C. hibits introduced through this witness have) however, been g.iven full weight and credit.

2. The fact that respondents: imported sewing machines a,re inspected and passed by United States Customs offcials at the port of entry as being properly and adequately marked so far as Customs law' are concerned and that respondent has marked its products in accordance with Customs demands is immaterial and no defense to this proceediug (L. H. Son, Inc. v. F. T. C. 191 F. 2d 954). 3. The Commission has the authority to forbid sale without affrmative and clear disclosure on imported products of the country of origin. L. Heller Son, Ing. v. F. T. C. 191 F. 2d 954. 4. 1Vhcther or not the Singer Sewing I\:Iachine Company or any other concern or individual imports int.o this country articles of foreign manufacture which are not marked, or ate inadequately marked as to place of origin is immaterial and no defense to this proeee,ding. Similar illegalit.y by others is no defense to anyone. Independent D7:rectory Corporation v. F. 7'. 188 F. 2d 468; Ford JJlotOT Company v. F. T. C. 120 F. 2d175.

5. The fact that Landers, Frary & Clark do not. manufacture an of the products distributed by them in commerce under the brand name Universar' or that they manufacture or sell other very similnl' products, m lrkcc1 and marketed under different branclnnmes does not dilute or militate against the confusion and deception hereinabove fonnel to exist "ith reference to the products advertised and branded "Universal': and respondents ' sewing maehines similarly branded. 6. The fact that respondents sell only to dealers, many or flll of whom are aware of the origin of respondents' se\'ing-machine heads or se\'ing machines of which said heads are a part, so sold, 01' are informed thereof by respondents, is no defense to the charge of inadequate or cone-ealed markings, since such machines are obviously intended for ultimate consumer purchase, and respondents, as the importers and distributors, have placed in the hands of others through sale, the means whereby the ultima.te purc1hlser may be and is misled and dece ived. 0110.8. /1, BreLIJet8 SOl1S Y. F. T. C" E:iS F. 2c1 74. 7. Hegistratioll of a brand or trade name or mark with the 1 . s. Patent O:fc.c for llse on a clas of products does not confer on the registrant the unqualified right to use such name ,yhere to do so is to confuse such products "ith products of even an entirely different class in the lnind of the consumer because of the identity of the brand the \ficlespread currency and favora,ble acceptance of the latter products and their closcness in function and usage to tlle class of products for IThich such registration has been issllcd. Hegistration STANDARD SEWING EQUIP:IENT CORP. ET AL. 1021 1012 Conclllions of a trade-mark is not controlling in a suit for unfair competition arising out of its use E. F. Pricha1'd 00. v. OonS1tmers Brewing 00. 136 Fed. 512, and the pmctice or rulings of the Patent Offce cannot create a conclusive vested right in the registrant. "VV"white House 31ilk Products 00. v. Dwinell- Wright 00. 111 Fed. 490, 493. 8. The use of a brand or hade name, on the acceptance and identification of which, much eiIort and money has been expended should not be taken avmy horn the user unless the public interest clearly so requires. There is in this record, hO\\evel', too much substantial evidence that the purchasers of sewing machines, or at least those 'who usually instigaLe their plll'chase-womcll-associate the name " Universal' with the products of another company, to doubt. that public confusion exists and tends and will tend to induce purchases ,\"which otherwise would not be nmde. It matters not ,whether Landers Frary & Clark arc inc1iilel'ent to such usage or confusion. 1\01' is the good faith of respondents in selecting its brand name, or its lack of intention to trade on the brand name of another. material. It is not private interest or motive which must be servea, but solely that of the public.

D. Considerablb thought and speclllaholl in obsen-ance of the legal principle that a person will not be required to ( iiscontinue the use of a name where some remedy " short of excision;' will give adequate protection (Federal Trade Comm,i.s.sion v. Royal J11illin,q Company, 288 LT. S. 212; Jacob Siegel C07npany v. Federal Trade Cmnmis8'ion 327 LT. S. 608) has been giycn to requiring the addition of a legend under the word "Lniversar' on the horizontal arm in letters suJIcie, ntly large to be as easily read as the ,YOI'd " Universal such as "K ot. counoc.ed with Landers, Frary & Clfrk:' or " Cure1ated to any other electrical or household appliance" or "Import(:rs and distributors of sewing machines only" or something else which ,yould immediately dispel from the vie,yer s mind the impression many of them get from the name " lTnivcrsa1.:' 11OIyover, the evidence is clear that any such decalcomania marking c.ftn easily, qnick1y Itnd effectively be ohliterated by the superimposition thereon of a different deca.lcomania UJldetec.table by anyone other than an expert. The record sholYs the same ,with meh,l plaques, \Thich Gm be removed in n. matter of minutes, without trace, to the ordinary pllrclmscr of the l'c.moval. From the clpmonstrahon of' this in the hearing room, it would appeal' also that another and cliffel'ent plaque could be attachecl1;-ith rivets in the same holes without easily discernible marks of sllhst.itubon. The record is harren of H,Tly suggestion by experienced persons as to limv adequate protection against. the. confusion 'Thich the evidence clem- 1022 FEDERAL T'TRADE CO MISSION DECISIONS Conclusions 51 F. '1'. C. onstrates, can be achieved short of complete excision 01' the n8.11e l;ni versal.

10. It is not necessa.ry to show that public witnesses saw respondents machines in the dealers' stores, 01' bought respondents' machines there or at all. It is sufficient, on the point of brand name confusion, if respondents' sewing machines are exhibited to the witness while testifying, or even if they merely testify to their confusion, or associatjon of the brand name with the products of a,another seller without ever se,eing respondents' product. Actual deception need not be shown and the Jaw under "which these proceedings have been brought seeks not only to protect the intelligent, the expert, the dealer, or the careful, but the ignorant, the credulous, the unthinking, the careless, the. inattentive in sum the ordiuftry, unsuspicious purchaser. 11. The record herein presents a far different picture than that of previous cases heard by this IIearing Examiner "There brand names such as :Mercury, I-Iudson or Hoover \\81'e alleged to deecive the purchaser into believing the sewing machine was made by the Forc1l\fotor Car Company, the H.hudson )1oto1' Company or the Hoover Company. In the first place there is a. wide disparity in use, function, price, a, size bebyeen sewing machines and automobiles. Secondly, a large number 0:( housewives, familiar with the Univcrsa.lline of household electrical appliances, testified in great detail as to their reactions and impressions, detail \\which \\as missing in other records. Thirdly, this record reveals for the first time that a decalcomania can be so effectively, cheaply and quie-rely covered by another and cliff'erent decalcomania t.hat detection of the .superimposition is impossible and further, that mei,al plaques or medallions riveted to the sewing machine 11ead can be easily removed \"without visible marring of the enameled finish and the rivet holes filled so that only an expert can discern the alteration. It would seem that an adequate and eiIective marking would be to have the words "Made in Japan" cut into the top side of the bed of the lJ')chine head in letters of sneh size and depth that an enameling or covering with lacquer ,,-auld not obliterate it and t.he user could not escape seeing and comprehending such marking. ,Vhether this can be done or if done, whether it too, can be concealed easily, the record does not reveal.

12. Since it is dear from the record that the in(1ivic1ual respondents are the only offcers, agents, representatives or employees of corporate respondent \"ho have had or now have any authority or control over the acts and practices involved in this proceeding, the \Yards "and its offi(:ers" following t.he words "a corporation" and the ,,,ords "rmd said respondents' representatives, agents and employees" following the STANDARD SEWING EQUIPMENT CORP. ET AL. 1023 1012 Opinion words "as offcers of said corporation" in the order requested in the N obce" appended to the complaint come within the prohibitions of R. J. Reynolds Tobacco Co. v. F. T. C. 192 F. 2d 535, 540-4 and are accordingly omitted from the following Order. Order It i8 ordel'ed That the respondents, Standard Sewing Equipment Corporation, a corporation, and 1Villiam J. Hackett and IIarry Kron individually and as offcers of said corporation, directly or through any corporate or other device, in connection with the offering for sale sale or distribution of sewing machine heads or sm-dng machines in commerce as "commerce" is defined in the Federal Trade Commission L\.ct, do fortlnvith' cease and desist from: 1. Offering for sale, sening or distributing foreign-made sewing machine heads or sewing machines of which foreign-made heads are a part, without dearly and conspicuously disclosing on the heads the country of origin thereof, in such manner that it cannot readily be hidden or obliterated.

2. Using the word "1)universal " or any simulation thereof, a.s a brand or trade name to designate, describe or refer to their sewing machine heads or sewing machines of which the heads are a part, unless there appears in connection therewith, in legible and clearly visible marking, the name of the corporate respondent "Standard Sewing Equipment Corporation.

It i8 further ordered That with respect to any issue raised hy the complaint other than those to -which this order relates, the complaint , and the same hereby is: dismissed.

OPINION OF THE CO:IDTISSION By SECREST, Commissioner:

This is an appeal by respondents from an initial dec.sion in which the hearing examiner found that respondents had violated the Federal Trade Commi sioll Act in selling to dealers, who in turn sell to the consuming public, sewing machine heads and sewing machines (1) not 1c1eqw1tely marked lS to the country of origin (lJapan), and (2) (leceptively marked ,,-ith the word "UnlvcrsaJ." In 194- , respondents began the importation from Tapan of sc\ving machine heads, which are manufactured there under responclent: 2uperyjsion. The head consisis of a horizonial and vertical arm -with sewing machinery, alj attached to a base plate. After ilnportation the. head is placed. in a carrying case 01' cabinet. and usually a motor foot pedal anc1light. fire attached. Such machines are then distributed (,6 423783- 58- Opinion 51F.

m1der the name Universal which word is attached in J "pan by " decalcomania on the horizontal arm. In some cases, heads are imported without the name "Universal " for sale to manufacturers \"ho distribute them under their own trade names. The number of heads imported with the word "Universal" has varied from 25% in 1949 to 60% in 1950 and 1951, and to 95% at the time of the hearing. As a prerequisite to the requirement that a sewing machine or machine head manufactured in a foreign country must be marked to disclose the foreign origin of the article we must find, as the Commission long has, that a substantial number of the purchasing public has a general preference for sewing machines produced in the 1Jnited States.

The reasons for such a preference may vary and to explore them all might well be the source material for a lengthy book. National pride or a sense of loyalty to things American are, no doubt, great factors. Veterans ,yho spent years fighting a foreign nation might "m11 prefer _A.american made goods over those of the nations against IV ham we were at IvaI'. Relatives, or even friends, of those imprisoned or killed, might \Yell have the smnc preference. lnny ctmerican ,\yorkers, and even whole communities in which they iVork, have a preference based largely on the fact that certain imported goods have replaced in the American :Market products they themselves would like to produce. Typical of such wOI'kers, to name only a few, are those in the glass, pottery, wntch and fishery industries. There are many '\yho feel that, in general, the quality of America,n made goods is superior. Further, a. vast majority of people in the -United States hate a general preference for products made in the Lnitec1 States over those made in the many nations behind the iron curtain. The Commission has decided many cases involving the marking of foreign made products and has repeatedly held that a preference exists for American made products. In L. Heller Son, Inc. v. Federal Tmde Commission (191 F. 2d 954, 7th Cir. (1951J) the court in its opinion said:

A substantid portion of the purchasing public has a general pref E;rence for products prodl1ced in the l nitecl States by American labor and containing domestic materials. where other considerations sllch as style and quality are equal, and has a, prejudice against imported products.

In the case before us the hearing examiner found as follows: Kat all, but a substantial portion of the purchasing public has a dpcic1ed preference for products of domestic manuJactllre over those of foreign make, particularly machinery of any kin, and ,,,hen sewing , , STANDARD SEWIXG EQUIPl\IENT CORP. ET AL. 1025 1012 Opinion machines are exhibited and offered for sale to the purchasing public and such articles are not marked at all, or are inadequately marked to show their foreign origin, or if marked and the markings are concealed. removed, or obliterated, such purchasing public understands and believes such articles to be wholly of domestic origin." The evidence in the present case is clear and substantial. The record contains testimony of 23 witnesses who had purchased Universal sewing machines. Four of these \Witnesses testified that medallions were on the machines they bought, bnt they did not see the word "Japan ('ven though they had been 11sing the machines for months. They found the word "J apan ' on the, medallion only after a repairman or newspaper story caused them to look for it. In one case where a medallion was attached it had been chipped and is of no value as evidence against the respondents since nothing in the record indicates who did the chipping. In three cases the medallions had been removed. In fifteen cases the mark of origin was hidden under the motor, on the bottom of the machine or beneath a metal plate. One witness said the word " Ja.pan " was so tiny she had never seen it. Another said the word ': Japan" was in very small letters and she Lad not seen it even though she had owned the machine for one vear. This machine Iras Commissioll S Exhibit 63 and the size of the l tter.s in the word "Japan" is exaetJy the size of those on the medallion approved by the Customs Service for the use of respondents. Anot.her \witness read the word at a distance of about one root during the trial. She had been using the machine for months and had not seen the word Japan.

Further light on this question may be gained by an examination of the Commission s Exhibit. 7. This 1\as a sewing machine, the head of which was imported by respondents. Around the top of the base of the machine, in gold, is a flowered strip 34 inches long, and 3/8 of an inc.h wide. The same strip, four inches long is on the guard on the top of the machine. On top of the horizontal arm of the machine, in gold are the words The 1Jniversal Sewing l\Iachine " totalling four inches in length. On each side of the horizontal arm appears, in gold, the 1\ord Universal" four inches long and in letters 112 inch high. Beneath this word on hath sides of the horizontal arm, in gold, appear on a black background, the following: " Heg. G. S. Pat. o If. " Also on this arm are three decorative designs, in gold, each a.approximately 112 inch by one inch.

A substa.ntialllumber of buyers, rosy-glowed, if the golden flowers on the machine hea.cl are what they seem, and bedazzled by all the golden words and golden decorat.ions will fa,jJ to see the gold word , , :

51 F. T. C. Opinion J apan" in %6 of an inch letters on the bottom fourth of a golden mcdal1ian well over one ancl1h inches high and over one inch wide. little firefly shines clearly on a dark night. His best. effort goes unnoticed in the brightness of the. sun.

Only on8 of the 23 witnesses had the slightest idea that the machine she purchased was made in Japan.

Fourtecn of the witnesses were asked if they would have bought the machines if they had lull\lll they "' ere of foreign origin. All stated that they would not haye made the purchases. As found by Hie hearing exarniIJer the respondents a short time after June 1 , 1049, adopted, with the approval of the G. S. Customs offcials a marking of foreign origin described as follows: : ::: a metal meclallion hexagonal 01' oval in shape about 11/2 inches vertical and 1 inch horizontal, in gold 01' brass finish, bearing t.he legend 'De Luxe' in raised quarter inch letters, and below that ' Luxe Family Sewing j)iachine Quality: ill raised letters approximately in length, and below that the word 'Japan' in l'aisedletters of approximately 1,'10 " in length The hearing examiner found as rollows:

These brass or brass-colored medallions or placques arc in bright gold color, in small raised letters only of the same color, with no background coloring to emphasize the raised letters, so that the ,yord Japan' is indistinct, diffcult to refld at a distance of greater than a foot, unemphasized nnd distinguishable only by careful inspection. There is also suffcient evidence in the record that users and purchasers did not see, or seeing, did not comprehend such marking. ",Ve can only conclude that the marking on the medallion was inadequate aue! that it "' as not properly attached. In fact, at the hearing an expert quickly removed one of the meda.llions and stated in the testimony that after removal there was no mark or blur on the ma. chine that would be noticeable to a purchaser. One of the respondents testified that It is not easy to remove the medallion, but it can be done.

Eleven of the witnesses ', er8 asked if they had a general preference for American made goods and ans\\"crec1 in the alIrmative. Eight were asked if tlwy had a preference for American made sewing machines and answered in the affrmative. one of t.he witnesses ,,had purchased seTIing machines made a stateme,nt that. they generally preferred foreign made goods or that the.y preferred foreign made sewing machines.

One of the respondents in his testimony said he did not remember receiving any complaints from consumers concerning the country of Sl' AXDARD SEWING EQUlPMEKT CORP. ET AL. 1027 1012 Opinion origin. This is not surprising inasmuch as the books of instructions handed to the purchasers did not contain the names or :1address of any of the respondents. Also the 20-year guarantee bond was signed by the dealer and the llames or address of respondents does not appear on it. There was nothing in these printed documents to indicate the machine was of foreign origin and if a. purchaser did not know, as many did not, tlutt, the machine was oT foreign origin, they \Vould not Jikely complain concerning something about \T"which they had no knm\'lcdge. The respondents have pointed out that the medallion they have been using was submitted to, and approved by, the Customs Service. 1Ve appreciate fully that this fact, and a bct it is, might well have Jed them to believe that the government required no further duty under another law.

1Vl1en a citizen honestly seeks an answer to the question of what he must do to obey the lnw of the land common decency essential to all good government, demands that he not be tossed unnccessarily from one government agency to another.

1Ve think this opinion, in future cases of a similar nature, will serve RS a guiding lamp and clarify, for those ,vho follow, the path they can and must take. It win make clear to any importer of sewing machines the markings that have mot both the requirements of the Federal Tr'lde Commission and the Customs Service.

In everyone of the ma.ny sew-ing machine cases in T\which an order was issued by the C0111mission the machine head had been 111ttrked to the satJsfnchon of the CustOlT1S Service, it had been admitted in to the l)united States, Rlld it had moved in conlIneree, a prerequisite to our jurisdiction. 1Ve should consider that the Customs Service has apprayed the marking, but it is no bar to our proceedings. If the Customs Service approves a mark that meets the requirements of the :Federa.l Trade Comnlission law, comity T\ould dictate that we accept it if the issue is presented to us. \Ve shou.ld not, through caprice or merely to show our authority, change a mark that win not deceive. On the other hand, ,ye are bound to require a clearer marking if we believe the marking approved by the Cust.oms Service has resulted and may continue to result, in deception. A clearer marking will protect the ultimate consu11er and will lULVe no adverse effect upon the customs inspector in the performance of his duties because, in fact, a clem' or marking would be casier for him to read. The respondents in making a change in the medallion may suffer some inconvenience, but the cost of changing the medallion will not be great. In any event, Section:' of the :Federal Trade Commissjon Act and Section 304 of the Tariff Act were not enacted for the benefit of 1028 FEDERAL TRADE COM"'ISSION DECISIONS Opinion 51If"T.

respondents, but for the protection of the ultimate consumer. vVe not think it can be maintained that Congress in the Tariff Act, or any amendment to it, intended to change or modify in any particular the authority it has granted the Federal Trade Commission. The evidence of record in this case is that customers ha VB been deceived as a result of inadequate marking and insuffcient attachment of the medallion to the machine head.

One of the respondents' Texas dealers, Son-EI Sewing Machine Company, was investigated by the county attorney's offce. As the result of adverse publicity, the name of this company has been changed and it no longer handles respondents' machines. The salesmen of Son-El made misrepresentations for which respondents can not be held responsible. Chief of these misrepresentations, such as that Universal sewing machines were manufactured by the makers of 1;universal traffc appliances and the Singer Company, will be diffcult for any oealer to make in the future, under paragraph 2 of our Order requiring the name "Standard Sewiug Equipment Corporation" to be used in connection with the trade name "Universal." Some medallions were removed and there is nothing in the record to indicate that respondents removed them. Respondents can be held responsible only to the extent that the medallions were not securely "ttaehed. This aid to misrepresentation of the country of origin wil be made ineffective by Paragmph 1 of our Order requiring the medallion to be attached in such manner that it can not readily be hidden or obliterated.

One fact is clear. However great were the shortcomings of Sonthe record reveals that of twenty-three purchasers in Pennsylvania and Texas the only four of them to get respondents' machine, s with the medallions intact got them from Son-El. The purchasers of these machines, a former saleslady of traffc appliances, 1.,,0 hol1sewives and a vocational nurse, testified that they had not seen the word "Ja.pan 3Jthough they had the machines in their possession from one month to a full year. In the 1whole record this is the best evidence of deception by inadeq,/j)ate inal'lcing. To permit the undeniable deception of four persons out of twenty-three to continue is inc1e,fcnsihle. This percentage of deception applied natioll"ide would effect millions of home Such deception can be p1y\ented only by Paragraph 1 of our Order requiring clear and conspicuous marking of the country of origin. .Ye pon consideration of nJ1 the material evidence in this record hold that a preference for sewing machines and sewing machine hCclds produced in the -edited States does exist and that the hearing examiner was right in finding that a substantia.1 portion of the purchnsing public &;

STAl\DARD SEWI"G EQUIPMENT CORP. ET. AL. 1029 1210 Opinion has a decided preference for products of domestic manufacture over those or foreign make and that respondents' imported sewing 111achines and sewing mac.hine heads are not adequately 111al'ked to show their place of manufacture or orig.in.

The Federal Trade Commission has no control over tariffs or what a consumer buys. Our only duty is to see that an article is adequately 111arked as to country or origin.

The appeal or the respondents in the matter or marking or foreign origin is denied.

We further direct that Paragraph 1 of the Order of the Initial Decision be modified to read as follows:

Offering for sale, selling or distributing foreign made sewing machine heads or sewing machines or -which foreign made heads are a part, without clearly and conspicuously disclosing on the heads the country or origin thereof, in such manner that it can not readily be hidden or obliterated.

The amended complaint charges respondents with deception in the Use of the word "' Gniversal" on machines and in advertising. The allegation is that "The word 'l:universal' has been used for many years as a trade or brand name by one or more long-established corporations and firms transacting and doing business in the "Cnited States whose products, sold under such brand or trade name, are well and favorably known to the purchasing public.

This question has been before the Commission and the courts on many occasions and certain features have been considered as follows: 1. The fact of actual confusion among purchasers- This is naturally an important element and in some cases relief has been denied where there was no such proof, anel the likelihood of substantial confusion was remote. G. B. Kent, Ltd. v. P. Lorillard Co. (1953) 114 Fed. Supp. 621; Arrow Distilleries, Inc. v. Globe Brewing Co. (1941) 117 F. 2d347.

In this case there is considerable evidence of actual confusion. suhstantial numher of witnesses in support of the complaint testified they were familiar with the line of products sold under the trade-mark LTniversal " and thought they were buying from that line. Some were familiar with the name of the manufacturer, L::mders, Frary & Clark, while others were not. On the other hand, it was stipulated that respondents could produce tcn purchasers of their machines who would testify that t.he name "Universal" did not indicate any COllnection with Landers, Frary & Clark.

2. The cha.rncter of t.he mark, whether strong or weak- In ATi"OIC D?8tillel'ie, , Inc. v. Globe BJ' lI;inr; Co. (1941) J 117 F. 2-d 347, use of the word "Arrow" on beer and ale was permitted even Opinion 51 F, T. C.

though another company used it on alcoholic cordials and liqueurs. There 'vas in that case no 8vidcnee of actual confusion. The court gave, as examples of strong marks, arbitrary, fa,Dcifn1, or distinctive words such as "Aunt .r emima I(odak" and "Halls Royce; but words in common use are given a much narrO\vcl' scope, such as universal blue ribbon gold medal"

The U. S. Patent Offce has issued trade-mark registrations in at least 64 instances and to many different companies of the \vord Universal" to be applied to a variety of products. Sometimes, the 1 n l'word is registered with other words orin connection \with pal'ticll designs. The telephone directories of Th'lanhattan and Phi1ac1elpili'l shm\' respectively 356 and 85 listings or business orgnniz:1 tion.s ,vbich use the word "L-:niversaF as part of their nmnes. 3. The nature of the competing proc111ds- It is not necessary that the competing p!'ocllld.s he identical. Other matters should be considered, such a:: milf1rity of appearance or use whether they are ordinarily h:1nc11ec1 : i he salle malll factureI' or distributor, wheqler sold in the salle kind of store::, whether they have a, common class of purchasers, whether purchased by the public :ellcrally, etc. In D1uinell- W7'iqht 00. v. National F/'uit Products 00. 140 F. 2cl 618 plaintiff had five registrations of ",Vhite Hous(:" on a line of fruit juices while defendant had three on tea, coHee and salted peanuts. The suit by plaintiff to prevent use of ",Vhite House" on a. new product-a blend of canned orange and grap.efn1it juice-was successful. Lack of similarity between brnshr.s and cigarets ",vas pointed out in G. n. Kent cD Sons, Ltd. v. P. LO'lillm'd 00. 114 Fed. Suppl. 621 , whereas in Ad?niral OOTp. v. Penco 203 F. 2d 517 , a similarity was found to exist bet een electric ranges and refrigerators and ele t.ric sewing machines and vacuum cleaners. The tcstiulOny in the case before us shows that one witness thought the sewing machine she purchased was an right because she had heard of L universal irons and toasters. Eleven of the wi tuesses thought the sewing machine was made in the 'Cnited States because of the tra.de name "cniversal." Five of the witness::es thought the machine was made by Landers Frary and Clark, whose traffc appliances bear the trade nmne of "universal.:: One \vitness had several Universal products and bought the sewing machine because she thought it was made by the same company. Another purchased the machine and thought it was made in the United States because hc saw that the motor was made in the United States The purchasers in some casp,S were confused and in practically every STA:ND RD SE\VING EQUIPMEKT CORP. ET AL. 1031 1012 Opinion case they were deceived because of the use of the word "Universal" on the machine.

"Gpon consideration of all the evidence we find that respondents, by placing in the hands of distributors, their sewing machine heads and complete sewing machines, of which the heads are a part, and using the word "universal" on the horizontal arm, have provided dealers with a means and instrumentality whereby they ma.y, and do lnislead and deceive the purchasing public as to the origin, manufacturer and sponsorship of said machines.

On the other hand, respondents have registered the trade Inark Universal" for use on their sewing machines. They have spent a considerable sum of money in promoting and defending their trade mark. Respondents have prevented, by about twenty-five Jegal actions, the use of the word "Universal" on smving machines distributed by others.

IVe belicye that deception can be avoided without the complete excision of the word "Universal.:: Paragraph 2 of the Order in the Initial Decision should be modified to require respondents to cease and desist from using the word "Universa)/' or a.ny simulation thereof, as a. brand or trade name to designate, describe or refer to their sewing machine heads or sewing machines of which the heads arc a part unless t.here a.appears in connection there,,,ith, in legible and clearly visible marking, the name of the corporate respondents "Standard Sewing Equipment Corporation.

Thus, the investment of the respondents in the trade name "B"niversal" will beprotectec1 and, at the same time, possible deception of the purchaser will be mininlized.

The appeal on the use of the word "Lniversa.l: is denied except that the order is modified as directed in this opinion. It is directed that Orde-r issue accordingly. Submitted with t.he appeaJ is a motion of respondents for an Order dropping Harry J(ron as a respondent in this proceeding on the ground that Mr. Kron, on February 24, 1954, severed all connection with the corpora.te respondents, Standard Sewing Equipment Cor poration, and now has no relationship with said corporation. The motion is supported by the aiIidavit of respondent William J. Hackett to the effect that Harry Krou did, on February 24, 1954, sell all of his stock in the corporation t.o ,Yilliam J. Hackett and severed aJl connection with the corporation.

, I-Iarry Krall \yas Secretary- During the hearing and prior thereto Treasurer of the corporation and had control over its affairs e Jal to the respondent IYiliam J. Hackett. The aiIday t does not set 1032 FEDERAL TRADE COMJlISSIOX DECISIOXS Opinion Jl F.

out facts suffcient to justify the review- sought in the motion and the same is therefore denied.

The foregoing decision in this case has been based solely on the record and what follows is for the purpose of presenting precedents set in former cases. These precedents will be helpful to importers in determining what the Commission has held to be inadequate and adequate marldng.

Administrative agencies are often criticized on two very important grounds-delay and inconsistency. The Federal Trade Commission has attempted to cEminate every c.cause of unnecessary delay. By our new policy of writing opinions we have attempted to achiE'Yc consistency and build up a body of meaningful case 11n, Thus, it is essential that we review our previolls action in simi1aT cases. One such ca.se is that of the Globe illacnIne (Jompany, Docket 588:3. 1i' (1 a complaint against this On 27 .Tune, 1951, the Commission iS company. The complaint said, in pari :

In some instances saiel heads, whe,t H' I:l\"ed by respondents, are marked with a medallion placed on tll( front of the vertical arm upon which the words ')lade in Occupied Japan ' or 'Japan' appear. These words are, however, 80 small and indistinct that they do not constitute adequate notice to the public that the heads are imported. An answer by respondent admitted this allegation, and the hearing examiner held that the above words 'were so small and indistinct that they did not constitute adequate notice to the public that the heads were imported.

On 4 Aprij, 1952, the initial decision of the hearing examiner became the decision of the Commission and the respondents were given 60 days to show the manner and form of compliance with the order not to sell machines or machine 'heads unless the country of origin was dearly and conspicuously disclosed on the head. It is impossible to speculate \'with certainty what the Commission would have held concerning the, original medallion had the case been tried and considered by them, nor is it necessary to do so. Important to the present case is what the Commission decided Jater. On 23 June, 1952, the Globe Company submitted a medallion it was using as an attempt to comply with the Commission s order. On a gold background, in gold letters, were the words ")trade in Occupied Japan. " All letters were VB of an inch in length. The Assistant General Counsel in charge of Compliance in a memorandum clatec113 July, 1953, pointed out, among other things:

STANDARD SE'VIKG EQUIP:\LENT CORP. ET AL. 1033 1012 Opinion In answer to our request, respondents, on June 23, 1952, submitted a specimen of the 'gold on gold: medallion which did not provide the clear and conspicuous disclosure required by the order. The Assistant General Counsel had rejected this medallion as compliance, and also rejected compliance reports as to other parts of the Order.

"\Vnen the respondents made no additional report he recommended that the Commission reject the original report of compliance submitted on 23 July, 1852. This report of compliance with a specimen of the medallion was submitted to the full Commission. The report was rejected. This was clone by the Commission as an expert body with no testimony. It held that 'Is " goJdletters au gold was not compliance with the order. The Commission properly used its expert judgment to determine what was not a clear and conspicuous disclosure of the country of origjn.

It might be argued that the admission ans\yer admitted suffcient Evidence of deception to wholly justify the Commission in supporting the hearing examiner s initial decision that the lettering on the original gold medallion was too small.

Ccrt.ainly it cannot be argued that the admission answer or consmner evidence, explicit or implied, would support the Commission in rejecting a compliance mcdallion, gold on gold, \Tith letters twice the height of the original. The Commission, on its own authority, and as a body of experts, said that gold letters l/S of an inch high placed on a gold medallion, would still, like the medallion condemned by the admission answer, be too small to prevent deception. In fact, the Commission inva.riably has secured compliance with its orders, issued "With or without trial, and to this date has never given a decision as to how high a gold Jetter must be on a. gold background to constitute full compliance. On the other hand, the Commission has often held that golc1letters far bigger than are used in the present case are deceptive if placed on gold. If the yoice of the Commission was the voice of consumer deception in supporting the hearing examiner s findings and order in the Globe case, it was the vo.ice of the Commission alone that said the letters on the mcdal1jon offered in compliance were lacking in stature. To accept the medallion in the case before us would be to accept a standard of notice far less than that rejected by the Commission. It could be nothing Jess than a retreat from the standards previously required in all cases for the protection of the public with respect to marking foreign made sewing machine heads. In the Globe case the Commission decided the medallion submitted to show the form of compliance was inadequate. Never has that de- 1034 FEDERAL TRADE CO lMISSIOX DECISIONS Opinion 51 F, cision been overruled. In fact, it has been followed as a standard of compliance in every subsequent case where an order has been issued with or without full trial before a hearing examiner. For a more complete consideration of the matter of precedent, ,,,ith respect to gold medallons similar to the one in the instant case, it win be helpful to review the action of the Commission in the nine sewing machine cases in which fun trial was had, beginning with the first case in which an order was issued and e.nding with the last. Consideration wil be limited to the adequacy of disclosure provided by medallions where gold letters \were placed on a gold background. 1. In Bieler and Rapin010itz et al. Docket 5891 , the hearinp' exam ine1' in his initial decision found that when medallions "dth the ,yord Japan " in raised letters to Is of an inch in length were used, casual inspection would apprise the purchaser of the country of origin. On those machines where the word "Japan" was smaller the hearing examiner sa.-id:

Others of these medallions on respondents' sewing machines are in bright color, in raisec11etteTs only, with no background coloring to emphasize the raised letters, and with other lettering, such as a bla. ncl or trade name of similar size and protrusion, so that the words 'Japan or 'l\lfade in .Japan' are indistinct, diffcult to read, unemphasizec1, and distinguishable only by careful inspection. An order requiring clear and conspicuous marking was made the decision of the Commission on 28 August, 1952, and an order for compliance was issued. A medallion with the words "J)lade in Japan" in gold letters approximately 1,1 inch in length, twice the length of the letters in the case before lls, on a gold background 'wns submitted and rejected as not providing the clear and conspicuous elisclosure required. The same size gunmetal letters on bJ11nmeta I 'vas later accepted as clear.

2. In Royal Sewing Machine Oorpomtion Docket 5892, the Commission found that the word "Japan" on gilt. or bronze colored metal bands were because of size and location TIholly inadequate. The record does not disclose the size of t.he letters. After trial an order requiring clear and conspicuous marking \rhs issued by the Commission on 5 j)lay 1953. A "gnnmetal on gnnmetal" meda.llion was accepted as compliance, letters V8 of an inch in length being, in this color, considered clear ancl conspicllol1s. 3. In Bcga Seluinq jlfachl, Inc.. Dochet 5893, the Commission found that the TIord "Japan" on a bronze eolol'ec1 metal medallion was so small and indistinct that it was not legjble to tlJOse. svho bought them oj' to the public. The letters were approximately VB of an inch , , STANDARD SEWIXG EQUIPMENT CORP. ET AL. 1035 1012 Opinion in length, twice the length of the letters on the medallion in the case before us.

After trial, an order requiring clear and conspicuous marking was issued by the Commission on 18 September, 1953. A black on gold medallion was accepted as compliance with the black letters appro ximately 118 of an inch in length being considered clear and conspicuous. 4. In Astor Industries Docket 5889, the C0l11nission found that the word " Tupan:' on gold color medallions " is indistinct, diffcult to read, ullcmpha.sizcc1 and distinguishable only by careful inspection." The letters on the medallions were approximately Vs of an inch in .length, tTIice the length of the letters on the gold medallion in the case before lis.

After trial, an order requiring clear and conspicuous marking ,vas issued by the Commission on 17 February, 1954. Compliance has not been had due to reported reorganization of the company. 5. In PWi2CO, lnc. Docket 6012, the Commission found that the \Yord apan" placed on a, medallion on the vertical arm of the machine " however, so small and indistinct that it does not constitute adequate notice to the public that the heads are imported. " The record docs not show the size of these letters.

After trial ith respect to the sewing machine heads in question an order ivas issued on 17 Februa.ry, 1954, requiring :TInx Chissik and Arthur Foyer, co-partners, doing business as Se\Ying -Machine Factors to clearly and conspicuously mark the country oJ origin. The complaint '"vas dismissed as to all others. After the order was issued respondents claimed withdrawal from C011merce. 6. In P'ickow Di8trib1Iting Om' Docket 5890, after trial the Commission found that the .word "Japan " in letters approximately of an inch in length, t\vice the length of the letters on the mednJJion in the case before us, on a brass medallion ,YfLs "indistinct, diffcult to read, unemphasizecl, and distinguishable only by more careful inspection than a purchaser or user would ordinarily bestow. .ul order requiring cle r and conspicuous marking was issued on 10 J\iarch, 1954. The compliance report stated the company \Tas in process of liquidation.

7. In Sewing 111 machine Sales OO''pO'' ation, et al. Doch:et 6149: the word "Japan" was placed on a gold medallion in letters approximately 'iG of an inch in length. The hearing examiner founel that this was not an adequate disclosure that the mathine heads were made in Japan. The lettering is identical with that iT) the instant case. On the ba3is of the findings a,n order was issued on 3 August, 19501 requirjng dear ::

1036 FEDERAL TRADE COMMISSIO!\' DECISIONS Opinion 51 1'. T. C.

dnd conspicuous marking and "gl1nmetal on gumnetllF: was accepted as compliance.

8. In Bond Sewing St01''es Docket (1112, the -initial decision of the hearing examiner antomatically became the decision of the Commission 011 23 November 195-1. The findings in this case are clear. The word " Japan" in gold letters approximately;''lG of an inch in length appeared on a gold lnedallioli. The hearing examiner fmmel that the word apan': was " not distinct and diffcult to read at a distance greater than one foot or so, nnemphasized and disti'nyui.'-Jwo7e Q,ul) oy careful in'8JJection. The word " JapalJ ' in this case is 1he approximate size of the word "Japan ': on the medallion at issue in the instant case. The examiner found ' that respondents: inlportecl sc"\ving HUlchines and se"\,ing machine heads are not adequately marked to 8110". the p1aec of manufadurc and origin ,;:" and required in his order clear and conspicuous c1isc.osl1re on the heads as to the country of origin. On 24 January, 1955, the Commission by a.ffnnative action ordered Bond Sewing Stores to comply with the order. The Commission decided in this case that the identical marking used in the case before us was inadequate.

9. In /IJel'czu' y Jlachine bnpo1'ting COI'poration, et al. Docket 601L two gold on gold medallions were otfered as Commission exhibits olte with the word " J apan" in letters approximately YIG of Hn inch ill length, t.he other with letters approximately l/S of an inch in length. After trial a stipulation for a consent order was ent-erell. An order of the hearing examiner requiring clear and conspicnons mm'king became the decision of the Commission on 4 January, 1955. A gold on gold rneclal1jon Tails tendered to show the form of compliance and \Vas rejected on 28 January 1955. The 1vord "Japan" all this medallion was approximately the size of that on the larger medallion submitted as an exhibit during the trial to show proof of inadequate marking and twice the size or the letters on the medallion in the case before us.

Briefly, we will now consider six related casef: which did not proceed to full trial. In each of these cases a medallion, stamped with the name of the country of origin, was attached on the front of the vertiea.! arm of the machine. After admission a,nS1yer or consent settlement, the hearing examiner fOllnd the. marking inadequate as to country of origin and issued an order requiring clear and conspicuous marking.

The six cases arc: Home L1fachine Supply lnc. , Rot!lan-HaicheJ't 00" Inc., Swwing .211 machine Exchange, et al. Stat.e S(;'win,q J1faold-ne OOi'p. ( STANDARD SKIVING EQI:IPMEKT CORP. ET AL. 1037 1012 Opinion et al., J apan-A1/ erica T'Iad,tng A,qenoy, and LY! er-cU1'Y Y aunurn stores. In each case the Commission ordered compliance with the order. In the case of 1I O1ne llfachine Supply, Inc. Docket 588J, complia.nce was accepted when "gold letters on gold" were changeel to "gunmetal OIl gunmctal."

In the case of R01nan-RaicheTt Co. , Inc. Docket ;'5886: compliance was accepted ,yhen ': goJc1 letters all o'ulcr' "\yerc changed to "black letters on golc1.

In t.he case of Sewing .Lllac1dne Exchange, et a7. Docket 5887, compliance ,yus accepted afrer "gold letters on golcr' were rejected and silver letters on black' and "gold letters on black:' ,were substituted. In the case of State Sewing Jlacldn. e C'orp. , et al. Docket. 5805 , COIlpliance ,yas accepted "when the "gold on golcF medallion ,yas ehangecl to "gnnmetal on gunmeta1."

In the ease of Japan-Atno-ica Tnt-ding Agency, Docket 6014, gold letters on a dark background wore accepted in compliance ,with the ordor of the Commission.

In the case of JJiercuTY Tiracuwn StOTB8 Doeket 60G4, a medallion "With "golc1letters on black:' was accepted as compliance. In none of these cases referred to above, or in any at hers considered by the Commission, has a medallion "\with " gold letters on gold:' been accepted as compliance wit.h an order to clearly and conspicuously clisclose on the head of the machine its country of origin, not because it was :' gold on gold" but solely because no such medallion submitted has been considered suUtciently clear and conspicuous. 1n the Globe case the Commission rejected a "gold on gold" medallion with the lettering t"\yice. the length of the letterillg on t.he medallion used by t.he respondents. In the record of all the casps the only indicfition of ;l suitable size is a finding of the hearing examiner in Bieler and Raphw'-Lcit. t.hat "the word Japan in raised gold letters 1;. to % of in inch in length ,,'ould by casual inspection, apprise the purchaser of the country of origin.

Gold letters l/s of an inch in length on gold, inv lriabJy, have been the object of orders and rejected as meeting compliance. The pla.y of light on a gold medallion renders such letters, as t.he Commission found in Pickow Di-sh'ibu. ting COTjJ. indistinct, c1iffcu1t to reac1 Ullemphasized, a.nd distinguishable only by more carefnl inspection than ,1, purchaser or user would ordinarily bestow. The play of light on gllnmetal does not have t.he same result and raised lette.rs l/s inch in length on gunmet.al have been accepted as complian('e with many orders. Also, letters of one color, l/S inch in length: have, because of contrast, been accepted as compliance when 1038 FEDERAL TRADE CO lission DECISIONS Opinion 51F.

placed on a background of a different color. ,Vhat results in the required degree of chtrity is for the Commission to decide, and it has spoken often. Its decisions, orders, and compliance requirements in former cases supporte.d findings that the word "Japan" in gold letters 1,1 () of an inch in length on a gold background is not adequate notice to purchasers and the public of the country of origin. , in 16 cases, we hold that 12 inches make a foot, precedent requires that \"8 give pause before, in subsequent cases, we hold that 6 inches make a foot.

,Yo have founel, in many cases, t.hat the word "Japan " in letters of golc1 h of an inch in length, on a gold background, is not cleflI'. To ignore precedents can result only in unequal application of the Jaw. To permit the use of inadequate medallions would he to declare that stare decisis, as far as the se,wing machine cases are concerned, is neither stare nor decisis. In respect to gold on gold me,dallions, stare decisis Tl'uld be synol1omous "\with de lij,ini1T/;is. Chairman I-Iowp.EY coneurring in the result: In the matter of ma,rking of foreign origin I concur but with considerable reluctance. R,respondents comphcd in all respects with the marking reqllh'crnents of the Tariff Act as interpreted and enforced by the offcials of the Customs Bureau. This is all that should be expected of a reasonable and prudent businessman. He should not be required to peddle h-is markings to various government agencies to ascertain separate and confiicting interpretations. It should be enough ordina.rily, to obtain the approval of the agency having original jurisdiction.

However, if the majority vi€lvpoint in this instance "\Ye.re to be rejected, it wouJc1 create a very diffcult situation from a competitive standpoint. A largo number of contrary decisions, many of them issued within the past two years, would have to be revised, reversed or ignored.

The solution would appear to be for the General Counsel of the Federal Trade Commission to confer wjth the Customs Bureau and negotiate an inter-agency agreement on marking requirements :for imported sewing machines. This agreement when approved by the Commission and t.he Depfutment of the Treasury should then govern the Comlr1ission s Compliance Division in interpreting that portion of the va.rious orders which requires that the. markings " clearly and COllspicuously" dislose the country of origin.

2 Srt' Dockrt KumbC'n. 5R8- 1. 5885. 5886, 5, 1'7 , 5,'80, ,'1801, 5SD2. 5893. 5804. 5,s9,'j, 5896, 5941 6011 , 60J2, 6013, 6014, 6015 6017 6049 6064, 6082. 0117 and Gl-1!:. , ,, STA:NDARD SEWING EQUIPMENT' CORP. ET AL. 1039 1012 Opinion DISSENTING Of'INTO:: OF CO BIISSIONER GWYNNE I do not agree with the conclusion of the luajority that the evidence is suffcient to prove that the machine heads in queetioll were inadequately markeLl as to the country of origin (.J apan). In 191: , respondents began the importation of machine heads from England. 'YJ1en this source of supply became inadequate, they began in the carry part of 1949 the importation from .Japan of machine heads manufactured there under respondents' directions. These machine heads were marked on the rear of the vertical arm by a decalcomania which included the words "Japan " or ")Iade in Occupied .Japan. It developed that when a motor was attached, this marking was partly covered. Consequently, in the early summer of 1949, respondents received a letter from the Appraiser of Merchandise of the Bureau of Customs of :N ow York City pointing out that: "It is necessary to require that the marking to indicate the country of origin appear on the face o:f the machine in a place where it is not likely to be defaced covered or obscured by conbination with any other article." The letter suggested that re pondents instruct t.their shippers immediately relative to these marking requirements. R.respondents stopped the importation of machine heads a.nd, following discussions with the Assistant Director, a medallion to be attached to the front of the vertir.-'ll arm was approved in a letter dated, June 15, 1949 from the Customs offcials, which letter contained the following: You are advised that the use of the plate submitted win be satisfactory provided the same is affxed to the upper part of the sewing machine in ft place which will not be obscured by the usual attachments sllch as a motor, etc., which may be added subsequent to importation and before delivery to the ultimate purchaser. The evidence is undisputed that since about June 15, 1949 (which was about two years prior to the issuance of the complaint), all machine' heads imported have been marked with this medallion which is described in the initial decision as follows: "* :; * a Inetal medallion, hexagonal or oval in shape about 1112 inches vertical and 1 inch horizont.aJ , in gold or brass finish, bearing the legend 'De Luxe' in raised quarter inch letters, and below that ' Luxe Family Selling )la( hinc Q.nality: in raised letters approximately " in length, nnd below that the I'mI'd ' Japan: in ra.i ed letters of approximately YlG" in length These brass or brass-colored medaJJions or pla.ques arc in bright gold color, in small raised letters only of the same color with no background coloring to emphnsize the. raiseclletters, so that the ,YOI'd 'Japan ' is 423783--58-- Opinion 51 F.

indistinct, diffcult to read at a distance of greater than a foot, unemphasized and distinguishable only by careful inspection. * * *" Some of the machines bought by certain consumer witnesses.s who testified in support of the complaint were evidently imported prior to the adoption of the medallon above described. However, it is undisputed that such methods of marking had been voluntarily abandoned in favor of the metal medallion about two years prior to the issuance of the complaint. Consequently, the question of the adequacy of the former marking is not here involved. Federal Trade Commission Civil Benice l'mining, Inc. (1953), 79 Fed. 2d 113. The only questions involved are (1) is the metal medallon presently in use suffcient to acquaint prospective purchasers with the fact of foreign origin, and (2) is the medallion adequately aU ached to the machine he,ad.

I-Iearings were held in Phila,delphia on ovembel' 29 , and 30, 1951 at which various consumer witnesses testified. The majority opinion points out that none of such "witnesses bought responclents machines with the medallion intact. No evidence was presented at these particular hearings having any substantial bearing on the two questions above mentioned.

Hearings 'ITerC held in Dallas and Fort \Vorth, Texas beginning on December 8, 1952 and ending December 11, 1952. The consumer "itne-8seb at those hearings bought their machines from Son-El Vacuum Stores, Inc., operating in Dallas and Forth .Worth. This company was the subject of an investigation in 1951 by the Offce of the District Attorney for Tarrant County, Texas. The assistant jn charge thereof testified as to various false representations made by salesmen of Son- El and other deceptive pra,ctices in re,gard to machines sold, which include,d Universal as well as other machines. There was newspaper publicity in regard to the matter and many of the consumer witnesses learned in that manner of the deceptions practiced upon them and some contacted the District Attorney s Offce in regard to them. The majority opinion states:

One fact is clear. However great were the shortcomings of Sonthe record reveals that of twenty-three purchasers in Pennsylvania and Texas the only four of them to get respondents' machines with the medanions intact got them from Son - El. The purchasers of these machines, a former saleslady of traffc appliances, two housewives, and a vocational nurse, testified that they had not seen the word ' Japan' although they had the machines in their possession from one month to a fun year. In the whole record this i8 the best evidence of deception by inadequate marking.

STANDARD SEWING EQUIPMENT CORP. ET AL. 1041 Opinion1012I agree that this evidence would be very important if it related to the particular medallion in question. However, as I view the record that is not the situation.

The former saleslady of traffc appliances, Mrs. L. G. Dawson, testified in substance:

When she bought the machine, she did not see any mark of foreign origin. "When the story came out. in the paper and after she had t.he machine is her home for a year, she found the word "Japan " on a "little st.icker of a t.hing just. stuck on there and says ' Universal Sewing Machine Company Japan.' You can just st.ick your thumb nail under it and. nick it off.

Wft (the medaJIon exhibited to her) is similar; t.his is not the same medallion that is on mine.

After examining the medallon which is a part of Commission Exhibit 65, she said: "This ha,s 1Jniversal in large letters here, and mine has it going clockwise around the medallion across the top there 'Universal Electric' and then ' Sewing Machine Company down there in here. Down at the bottom, it is like this, similar to this Japan' in small letters at the bottom of the medallion." It is my conclusion thirt. the witness \vas not testifying about the nlec1al1joll which 'was adopteclLy respondents in June, 1949 and ,,;which is the only one in question here.

The vocational nurse, :YIrs. L. O. Graham, bought the machine introduced in evidence as Commission s Exhibit 65. This machine had a medaJIon on the front of the vertical arm with lettering which Mrs. Dawson at the hearing read as "The Universal Family Sewing Machine" and then "Japan" in very small letters. The medallion was on the machine when she bought it and she did not notice the ,,' ore! Japan" until after she read the newspaper article. Here again, it is doubtful that the witness was speaking of the medallon involved in this case.

A total of ten housewives testified at the Texas hearings. Each testified in substance t.hat when she bought the machine, she saw no marking of foreign origin. Lat.er, some of them found a mark indicative of foreign origin on various parts of the machine. For example, Mrs. J. D. Owens found "Japan" inside the bobbin case; Mrs. Allen Jarrell and Mrs. B. L. Westmoreland found ").fde in Japan" or "Made in Occnpied Japan" behind the motor. These were obviously machines imported prior to June 15, 1049. None of the ten witnesses testified finding a medallion such a.s the one. involved in this case. It is true most of the machines had the word "Universal" on the horizontal arm. Respondent Wiliam J. Hackett gave the names of 1042 FEDERAL TRADE CO:V.C'vIISSIOX DECISIONS Opinion 51 F. T. C. five different companies with 'Thich litigation had been carried on because of their wrongful use of the name "Universal" on sewing machines. He further said there were in all 25 or 30 such cases. vVe therefore cannot cunclude simply from the use of the name "Universal" that all the machines involved in this case were those of respondents. The evidence of consumer deception based all the use of the medallion approved by the Customs offcials is too uncertain to be of any substantial value.

Of course, the use of a well-kno'Yll English name such as "Universal" may be considered on the general question of capability of deception. However, it is not disputed that this lettering was put on prior Lo the importation of the machines and was undoubtedly taken into consideration by the Customs offcials when the medallion was approved. The same may be sald of the gold ornamentation elaborated upon in the majority opinion. At least, there is no evidence that it was put on after the machines passed the cllstoms inspection. The initial decision mentions several items of evidence which arose eubsequent to importation. Advertising by respondents and five out of seven dealer ads did not advise of foreign origin. The same is true of the instruction books that went with the machine. I do not believe that in this type of case, such omission can be said to be deceptive. Attention is also called to the fact that motors attached to the machine bear metal labels reading "Universal-rd:ade in USA Delco- J\lade in Rochester, New York Simplex-Thlade in usa " or "Universal Sewing l\1machine j\1:motor-:M:ade in USA." This is a circumstance to be considered, but the evidence of deception based on such marking lS not clear.

Respondent .Willam J. Hackett testified that their machines are sold to about 1 000 dealers and that he did not remember receiving any complaint concerning the count.ry of origin either from a customer or a dealer. It may be true, as suggested in the majority opinion, that most customers did not know the name of the importer; but the dealers undoubtedly knew. K atul'alIy, a dealer such as Son- EI would not transmit a complaint. It is interesting to note that respondents quit selling Son- EI in the latter part of 1950 which was several months prior to the investigation by the local District Attorney s Offce and almost two years prior to the hearings by the Federal Trade Commission. It is also interesting to speculate what the evidence might have been had the consumer witnesses been chosen from customers of dealers who did not indulge in "bait advertising" and other reprehensible practices.

IAKDARD SEWl G EQUIPME T CORP. ET AL. 1043 1012 Opinion On the second question whether the medallion is adequately attached to the machine head, the evidepce is also very meager. The medallion is attached to the vertical arm by two small rivets inserted from the front. Respondent Harry Kron and the manager of Son-EI (the Texas retailer) testified that the medallion would be diffcult to remove without marring or scratching the machine. On the other hand, the ma.rmgel' of the Fort "V orth Singer Sewing :Vlachine Company testified i1\ substance that the medallion can be removed without seriously marring the machine; that the two copper pins holding it can be removed easily by knocking the heads en and driving them through; part oJ the metal pin \\'which is Hush with the vertical arm can be driven through TOith a puneh of the same size into the inside of the arm. The witness did in fact at the hearing remove a mec1al1ion. There is very little other evidence on the subject of ease of removal unless it may be inferred from the fact that some medallions obviously were removed. There is no evidence that the method of attachment wa.s any different than that customarily used in such situations. Arllong other things, respondents point, out that they have fully c.ompliecl with the marking requirements of the Tariff Act as interpreted and enforced by the Customs oficia1s. On this point, the initi81 (leci ion says:

The fact that respondents' imported sewing mac.hines are inspected r1J1d passed by -United States Customs offcials at the port of entry as being IJroperJ :mc1 adequately marked so far as Customs la-ws are eOllCelTled. and that respondent has marked its proc1uc.s in accordance with the. Customs demands is immaterial and no c1efen e to this proceeding. (L. IleUm' Son, Ing. v. F. T. C. 191 Fed. 2d 934). I agree that it is not a defense. The conclusion of the Cnstoms officials is not a. judicial decision -which can be plead as res judicata. That. (toctrine npp1ies only to judicirll proceedings and not. to decisions made ministerially. See 33 C. J. S. p. 27; BTidge8 U. S. (1932) 199 Fed. 2d 811; Peu' 8on Y. IVillicnns, U. S. Oom,1ni881 012Cl' of ITl11nigration (1906) 2021) S. 281.

IIowever: I do not agree that. this cvic1e-nce is immaterial1. ot only is it material, but it should be given consicle-rablc we,ight. This is for two reasons, f-lst the, intrinsic value of the evidence itself, and, second the nccessity for avoiding conilicting rulings by different agencies of the same government. Title 19, Sec. 130'1 of the U. S. Code (1946) provides:

Except 8S hereinafter provided, every article of foreign origin (or its container, as provided in subsection (b) hereof) imported into the United States shall be marked in a conspicuous place as legibly, in- , j; 1044 FEDERAL TRADE COMMISSlOX DECISlOXS Opinion 51 J!. T. C.

delibly, and permanently as the natme of the article (or container) wil permit in such marmer as to indicate to an ultimate purchaser in the lTnited States the English name of the country of origin of the article. The Secretary of the Treasury may by regulations- (1) Determine the character of words and phrases or abbreviations thereof which shall be acceptable as indicating the country of origin a.nd prescribe any l' easonable method 01 mRl'ldng, whether by pdntillg, stenciling, stamping, branding, labeling, or by any other reasonable met.hod, rmcl a conspieuor:.s place on the l1tiele (or conta.iner) where Ow marking shall app8nr;

The regulations of tho Secretary of the Treasury provide: (b) The marking required by slich section 301 shall include the English rWl1e of the country of origin, unless other marking to indicate the English nmne of the country of origin is specifically a.authorized by the BlH'cau. :

( d) The metlwc1 of ma.rking slmll be. one. suita.ble to produce marking on the particular article (or container) which, so far as the nature of the article (or container) 1\illl' casonahly permit, 1\ill be le.g1ble to t.he usual ultimate purchaser of the article 8.l1cl 2,0 iC.deliblc. aiel perma.nent as to assure that the mEn'king willl'remain in a Jegjble condition until the article is acquired by an ult.imate purchaser. Stenciling upon such mticles as bagging; branding or stenciling upon such match:ial as ,,"ooc1; stamping v.-ith a rubusI' stan1p LLpon sneh il1atol'ial as pap81' or cloth, but not upon met.al; die-stamping, cast-ill-the-mold Jettm'ing, etching, engraving, or marking by meallS of metal plates which bear the prescribed marking and which are securely flttached to the. article by screws or rivets on metal ft.article.s; * , * a1) the foregoing are ordinarily proper methods of marking. '"

( e) Articles (or containers) subject to marking t.o indicate the name of t.he country of origin shall be 11a1'ke(1 on an inte.gl' al part in a reasonably conspicuous place where the ma.rking can be easily read upon a casual examination or the article (or container) and is not likely to be defaced, destroyed, removed, .altered, covered, obscr;red or obliterat.ed bytbe t.treatment or use made of the article (or container) * *:Jbe-fore it reaches the ultimate plll'chflSf'T. , The Secretary of the Treasury may authorize. the exception 01 any article from the requirements of the marking under certain cir cum stances.

In t.he enactment of Section 1304, Congress intended that the ulti. mate purchaser should be able to know by an iuspection of the marking on the imported goods, the country of which the goods arc a product. STANDARD SEWING EQnp IEKT CORP. ET AL. 1045 1012 Opinion The purpose of this section is to mark the goods so that at the time of purchase the ultimate purchaser may, by lmowing where the goods were produced, be able to buy or refuse to buy them, if such marking should influence his will. U. 8. v. FTiedlandeT cD 00. (1940) 27 C. C. P. A. 997. In U. 8. v. Ury, 106 Fed. 9el 28, the court said that Congress c8Tbdnly intended to prevent removal or obliterat.ion or mark by ft retailer ,vhile the imported article was on his shelf for sale, and yet the article in such a case has passed from foreign to local commerce. The purpose of the act was to apprise the public of foreign origin and thus to conrer an advantage on domestic producers. In Didia v. U. 8. (1939), 106 Fed. 2d 918, the court upheld an indictment for removing labels by the o"Wuer of a store while the goods were part of his stock. The goods had been shipped to the defendant by a wholesaler and obviously the defendant \\as not the importer. A different situation is presented \\here goods are imported for purposes of manufacture and as a result of the manufacturing process the imported products lose their identity as SHch and become new mticles having a new name, character and use. In U. S. v. Gibson Thomsen 00., Inc. (1940) 27 C. C. P. A. 267, wood brush blocks and t.oothbrnsh handles were imported by a manllfactnrer of hairbrushes and toot.hbrllsllcs. At the time of their importatien, these articles were "legibly, indelibly, and permanently marked in a conspicuous place (so long as they remained in their imported condition) with the name of their country of origin (.Tapan), tbe word " Tapa,n being die sunk on that part of the articles where, after importation, bristles \\cre to be inserted in order to conTert the toothbrush handles into toothbrushes and tho wood brush block into hair brushes. :' Conse Cfllently, it as held that the importer-manufacturer, rather than the person who bought the completed hairbrush or toothbrush was the ulti.mate purchaser" of the imported materials. In U. 8. v. Strauss Import 001'1'. 27 C. C. P. A. 274, a similar conelnsion was reached in regard to imported slide fasteners to be used as closures on clothing, bags, etc., which: when so used, became an integral constituent and component part of the finished articles.

There are, of course, cases of goods manufactured in the United States substantially of imported products \\here the Commission may require a disclosure of that fact in order to prevent deception on the consumer, and this would be true even when the Customs offcials require no marking or a marking only suffcient to advise the importer- Inannfacturer of the foreign origin. In lleller SOrl8 , Inc. F. T. 0. (1951) 191 Fed. 2d 054, respondents imported pearls either on strings or in bulk, marked with tags or labels either on the strings 1046 FEDERAL 'trade COMJ\lission DECISIOKS Opinion 51 F. T. C. or containers. Respondents removed the tags or labels, fabricated the pearls into necklaces, etc., and distributed them without disclosing that the major portion of the fabricated articles, the pearls, were of foreign origin. A cease and desist order was upheld. In line with this thought, the Commissioner of Cl1stom, in a circu lar Jetter dated August 30, 1045 to Collectors of Customs and Others Concerned, advised as follows:

The Federal Trade Commission has illfol'med the Bureau that although imported merchandise ma,y be excepted from the requirements of marking to indicate t.he name of the country of origin under the provisions of section 304, Tariff Act of 1030, as amended, and the regula60ns thereunder, it is possible that in view of the provisions of section 5 of the Federal Trade Commission Act the marking of such merchandise to show the country of origin may be required by that Commission.

Therefore, in future cases involving the application of section 304 .supra in each case where it is concluded that the import.ed merchandise is excepted from the requirements of marking the importer shall be. informed t.hat the Federal Trade Commission )s also concerned with the marking of merchandise and it would be advisable for the importer to ascertain the vieiYs of that Commission relative to the application of the Federal Trade Commission Act to the merchandise in question.

In the present case, the Customs offcials objected to the marking of the machines wit.h a clecalcoma,nia on the back of the vertical arm, on the ground that the attachment of a. motor .would for practicnJ purposes cover the marking. In th:is they ,yen obviously thinking of the consumer as the "ultimate purchaser" under the Ad. Certainly the former marking was adequate for the protection of the importer. In other words, the Customs offcials were seeking to protect from deception the same class of person that the Federal Trade Commission is seeking to protect. The H eZlel' case does not hold that the conclusion of the Customs offcials is immaterial in the type of case that "We now have before 11S. The court simply held that the Tariff Act giving specific authority over marking to the Customs offcials did not by implication take a,way the jurisdiction of the Federal Trade Commission in cases under Section 5 of the Federal Trade Commission Act, simply because imported goods were :involved. In the instant case, however, the question is not one of jurisdiction but of the weight to be given to the admitted fact that the marking in question had been approved by the Customs offcials.

&;

STA:)DARD SBWllG EQUIP dent CORP. ET AL. 1047 1012 Opinion IVo can take judicial notice of the fact that the importation of many different. types of goods is passed on by the Customs offcials of the Port of New York. It is reasonable to believe that they have developed considerable skill and knowledge in regard to markings that will prevent deception. If the opinion of a consumer witness (whose experience may be limited to a single incident) is of va1ucj the opinion of impartial experienced offcers of the government acting in the per formance of duties placed upon them by law would seem to be of at least equal value.

Secondly, to ignore the conclusions of th( Cnstoms offcials will Cl'CatB confusion in the administration of the law. At best it is diffcult for the citizen to find his W::lY in the labyrinth of rules and regu. lations which beset him on all sides. It.is not made easier when different agEmcies of the same government set up conflicting roa.c signs. This thought was well expressed by the late :11:1'. Justice .J ackson in his dissenting opinion in The Rubemid Company v. F. T. C. 343 U. S. 470 at page 482, in which he points out: : recent instances in which part of the governlTcnt appears before us fighting another part usually a wholly exec:utive-controlled agency attacking one of the independent administrative agencies-the v. UnitedDepartments of Agriculture (Sec)'elcf.' ,I oj _-J,qriculluI'G States 34' U. S. 298) and Justice (United States v. Intentate eomrne'Jce 001n7nis8ion 337 U. S. 42.G) against the Interstate Commerce Commission, the Department of Justice against the J\Iaritime Commission (For East eon!erence v. United States 342 U. S. 570), the Secretary of the Interior against t.he Federal Power Commission (United States ex 1' el. Clw)Jlnan v. Federal Powep C01nmission, 345 U. S. 153).

Courts usually give considerable weight to the conclusions of other courts, even where they are not bound to do so. In fif ast Foos 00. v. Stover 3fan1l,fact'l1ring Co. 177 L. S. 485, the court said: Comity is not a rule of law, but one of practice, convenience and expediency. It is something more than mere courtesy, which implies deference to the opinions of others, since it has substantial value in securing uniformity of decision and discourages repeated l.tigation of the same question.

Title 19, Section 1304, lays down a general Congrcssional policy as to marking of imported articles which is binding on all of us. The law does not require that the ma.rking itself shall be conspicuous, but only that it shall be in a conspicuous place. The importer is required to give notice of foreign origin; there js no requirement that he shall advertise it. or is there any mandate that the marking be visible 1048 FEDERAL TRADE COMMISSION DECISIOKS Opinion 51F, to all who pass by; some examination is required. The regulation of the Secretary of the Treasury is that marking shall be "in a reasonably conspicuous place where the marking can be easily read upon a casual examination of the article." I think this means the type of examination that would be made by the usual prospective purchaser. Tho regulations also provide that marking by means of metal plate which contains the required information and which is secllrely attached to the article by screws or rivets is suffcient on metal articles. Reasonable skil and diligence should be exercised in putting on markings that will meet the requirements of the law. evcrtheless, in many cases a product can not be marked in such a manner as to insure that it will not be hidden or removed. That the Congrese recognized this is shown by the criminal penalty provided in Title 19, Section 1304 (e) of a $5 000 fine and one year imprisonment for rcmoving or altering any such mark with intent to eonceal information given thereby. It is my conclusion that the record does not justjfy an order against respondents in the matter of marking of foreign origin. That portion of the appeal should be granted.

The majority opinion refers to former cases where consideration has been given to this general subject. Some have to do with settlements and some with statements made in regard to compliance and others were contested cases.

Each ca e must be decided on its own facts as developed by the evidence. In none of these cases does it appear that the conclusions of the Customs offcials as to the suffciency of a particular marking "as given any weight. In fact in AstD?' Industrws, Inc. , et ai. Docket 5889 , and Picko-w Distributing COTpomtion et al. Docket 5890, it was held (citing L. Heller and Sons v. FTO) that such evidence was immaterial. I think this conclusion is not supported by the Heller case and should be overruled.

In prior statements on this subject, the Commission has discussed gold on gold gunmetal 011 gunmetaI clearly and conspicuously disclosing, unemphasized " etc. In fact the Commission seems to have not only ignored the conclusions of the Customs offcials but also the intent of Congress as expressed in its statutes. I agree with the statement in the Concurring Opinion of Chairman Howrcy as to the desirability of cooperation with the Customs offcials. It seems to me, hO\vovc1', that cooperation should begin in this case, where the question is directly raised.

COlnmissioner 1Asox joins in this dissent. STANDARD SEVlING EQUIPM_ CORP. ET AL. 1049 1012 Opinion SPECT.oL O:FIXIOX CO::GGRHING WITH CO::1lIISS:rXER GWYNNE S DISSENT By 1\JASON , COlluTIissioner:

This is a case about color schemes and lettering on labels lor imported sewing machines.

The Tariff Act says you can t bring manufactured products into the UnHed States un.less the goods are marked so the casual observer may see whe.re they come from.

The Bmeau of Customs of the Treasury Department administers this in',y-and a right good job it does.

lmt ,yhy the E'ec1eral Trade Commission gets into the act is not nppa,lent. But it is surprising how often an overdeveloped sense of responsibility makes onc agency of Government duplicate, overrule or amend the work another has already done.

This is the opposHe. of the usual governmental practice known as sing the buck. :: It is called ;;gl'abhing the buck. The Commission grabbed the back in the iustant case because it felt neither the color scheme nor the size of the letters Treasury approved for defendant's labels really protected the public interest. Here is what ha.ppened up to the time the Federal Trade Commis- .slon came into the picture.

While tbe deffmdant had always Ia.beled his machines " Iade in Japan" (the country of origin), the Bureau of Customs back in 1949 determi1led the markings were not as plain as they should be. They told him so.

Re chitnged his marking in accordance with their suggestion. They WI'te him a letter approving the change. By 1955 the Federal Trade Commission decided it didn t like the Custom Collector s taste. According to the Federal Trade Commission, gold lettering on a gold medallion would no longer do. Gunmetal on gold, or even gunmetal on gunmetal would be quite all right, but even then, the letters should be just a bit bigger. To give governmental recognition and full force and effect to this great ethnological shift, the Commission has now adjudicated thatif defendant wants to use a gold medallion on a sewing machine, it ought to make the letters another color and increase the size of the word "Japan" a sixteenth of an inch.

So much has been said regarding the merits of an eighth of an inch over a sixteenth, and the virtue of gunmetal on gold over gold on gold, that I hesitate to add anything to this already exhausted branch of our knmvledge. Suffce to say I am in complete agreement with the opjnion of Commissioner Gwynne. too, opine that perhaps we had best leave this exotic field to the polished judgment of the ad- 1050 FEDERAL TRADE CO:M"nSSIOX DECISIONS Opinion 51F.

rninistrntivc offcial originally endowed with the burden of approving foreign marking, name,Jy, the Trea nry Department Bureau of Customs.

Not that; we Commissioners aren t as cultured and refined as a customs collector-it' s just that it takes us too long to be vague on matters he decides so clearly and quickly.

How did the CaJledoI' do this? The 1 D4D change of marking effected by Customs involved the exchange of three Jetters.

One, signed by CustOl1l2, outlined what should be done. One, signed by t11c hnporter, set forth his method of carrying out what CustarDs \ranted.

And one, by Customs, acknowledged and approved the new marking, as follo\ys:

You arb advised that the use of the plate submitted will be satisfactory provide.d the same. is affxed to the upper part of the sewing 11usual attach-Inachinc in a place which ,yill not be obscured by the ments, EllCh as a motor, etc., which may be added subsequent to importation and before delivery to the ultimate.e purchaser. There Inay have been some collateral conversations at the time but taken a11 in all, the proceedings \\'81'e quiek, inexpensive, and to the point.

:Here was no beat.ing around the bush with a lot of "cease and desist" language.

Customs told the importer just what. it wanted. The importer did what he was told to do, and everybody was happy. The time consumed-a. fClY days.

The paper consumed-three letters.

The Customs Collector lmd agreeably accomplished his duty. The businessman had agreeably complied with the law. And the consumer? "\Vell, anybody with eyes good enough to thread the needle on the sC'''lng machine could certainly read the Customs- approved gold Ineclallion three inches above it. By So doing, cnstOlncrs could ascertain (if interested) the ancestry, origin and antecedents of the machine.s they bought.

All this indicates the ColJccror of Customs devised and used an effcient empirical routine for the protection of the public in marking foreign-made goods. Certainly his day-ta-lhty administration of his duties entailed very little oppression and burden on tl10se whose bl1sinessps are subject to his control.

_______________________ _ STA:0WARD SE\V1XG EQ,LiIP :iTNT CORP. ET AI.. 1051 101 Opinion As against the casual exchange of correspondence -when Customs dealt with this problem, compare his administrative action with what took place when the Federal Trade Commission decided it too should protect the public interest.

Turn we now to the ineluctable and awesome scene as the Federal Trade Commission swung its batteries of hnvyers, investigators, hear ing examiners, rcviewers, chiefs of bureaus and Commissioners into acti on.

Before drawing the complaint, the Commission engaged seven lawyers to make 79 investigations involving trips to: Cit- Number of Tri.ps Kew York, ";r. Y._------- ---------------- 6 Brooklyn, N. Y._----------------------------------------------------- 1 Philadelphia, Pa.- Pi ttsburgh, P L --- - ---- 1'' est V iC\v, Pa.- ---- - \Vashington, Fa.- --- --- -- Etna, Fa.- - Cecil, Pa.___ Nev\" Brighton, Pa.--___ --------------------------- 1 IcKeeSIJOl't, Fa. -- -- - - Cieyelancl, Ohi(L -- --- - - Providence, R. 1.

Baltimore Id.__- - ------- 2 CIin ton, 1Id.__ Boston Iass._ Chelsea, l\lass._ Westfield, l\ass.___ Springfield, Mass._ Cha ttanooga, 'lenn.- --- - -- )J ash "ile, ':tenn._-- -- Jersey City, X. J._--- --------------- 2 N e,volk J. -- - - - - ------------ 1 assaic, N. J .--- - - ------- -------------------------- 1 Hartford Conn.- ------------------- 1 ::Ianchester, Conn._____---- ---------- ------ --------------------------- 1 Atlan ta, Ga.- Falls Church, Va.____ 'Vhen trial came on, the Comlnission had to send its prosecutor and :its hearing exa.miner to Philadelphia, New York and Dallas, as well as employ court reporters to cover the extended hearings in those cities. This represents an outlandish expenditure of Goverilment funds considering the results obtained. K or do I believe it amiss to express some concern over the defendant' s similar.r loss in defending himself for doing "vhat Government had already advised him was "satisfactory. "

.. .. .. .. Opinion 51F.

It is cases like this that demonstrate the crying need for the Langer Bill.

It appears that the defendant had spent $100 000 in some 25 suits against private parties protecting his right to the labels on his sewing machines. In all of these suits he was successful. But now he had to employ his lawyers, stenographers, court reporters, et aI., to again defend his property, but this time against his Government. And here he did not do so well. For the Commission in its wisdom ordered the defendant to cease and desist. from selling foreign-made sewing machines without Clearly and conspicuously disclosing on the heads the country of origin thereof, in such manner that it cannot readily be hidden or obliterated.

Albeit the defendant and the Bureau of Customs lead been rocking along for years in ignorance, both blissfully believing that defendant' labels already did just this. Certainly the above order did nothing to dissipate the fog.

If it weren t for the careful collation of staff comments on foreign marking by Commissioner Secrest in his novel but scholarly majority opinion, we would never know the COlnn1ission wanted a different color and a sixteenth of an inch bigger letters. The thing that tells what the Commission wants is not its quasi-judicial order, but the staff' interpretations as to what the order was really driving at. In other words, we have coated our administrative busybodiness in the mummery of a judicial show to no avail: for no matter how we try to dress up our foreign-marking cases to look like they were quasijudicial questions, in the end the F ecleral Tra,cle Commission has to drop its role of court and let its staff act like an administrator. All of this naturally leads to the question, how many administrators must an importer listen to-Customs: the Federal Trade Commission aud who next! From a practical standpoint, the logistics of the problem indicate the advantages of direct Bureau of Customs administrative treatment in these cases over the costly and lengthy quasi-judicial process of the Federal Trade Commission.

There are other cogent reasons why we should retire gracefully (even though we at present have the authority to remain) from this type of litigation.

3 S. 1752 introduced in the 83d CongreECS, 1st Session: "No person E11a11 be linhle to tl1 United States Government for'" penalties because of conduct not ill conformity with any statute or other law, if he establishes that his conduct was in conformity with'" a rule'" of an agency responsible for administering that law, and if such statement was promulgated to guide him STANDARD SEWIJ\G EQUIPMENT CORP. ET AL. 1053 J012 Opinion-n Besides revvorking the Bureau of Customs field, we have also wandered over into tbe Patent OlEce Trade-Mark Operation of the Department of Commerce.

In the instant case, defendant applied for and received a trademark registration for its use oT the word "Lniversal." Issuance by the Patent Office of a trade-mark registration carries with it prima facie evidence of validity, ownership and right to use. ""Ve have reversed the Department of Commerce copyright department \\'hieh g-Rve Standard the right to use the word "Universal" in manner and form as respondent has been using it for years, and all this after it has snccessfully defended in the courts of the land its right to such a symbol.

Here again there is no doubt but that We have the authority, but see what mischievous interpretations we foster when we command the defendant to cease and desist from Csingthe word 'Universal ' or any simulation thereof, as a brand or trade name t.o designate: describe or refer to their sewing machine heads or sewing machines of ,which the heads arc a part, unless there appears in connection therewith, in legible and clearly visible marking, the name of the corporate respondent ' Standard Sewing Equipment Corporation.

This part of the order is based on the testimony of witnesses, some in Texas, some in Philadelphia, who testified when they saw the word Universal " they thought the sewing machine "vas manufactured by Landers, Frary & Clark.

It so happens that Landers, Frary . & Clark do not make sewing machines, but nevertheless it might be asked when we require Standard to add its na,me to the word " Universal" every time Standard uses are we in effect giving Landers: Frary & Clark an exclusive and perpetual monopoly to use the word "Universal" by itself? Certainly on its face it looks jjke we were, but careful analysis wil show this is not so.

Tomorrow Landers, Frary & Clark may haplessly fid themselves the butt of a similar proceeding if other witnesses two thousand miles of! in another direction are wiling to testify that they believed the word "Universal" really indicates that the Fritter Fryer Company or the Zilch Zither Corporation made the machine in question. 'Vhen the trade-mark people adjudicate the fact of prior use for an article, they first give notice to the world by OlEcial Gazette so that all who wish may make claims for or file interferences again;.t the use of the -word or phrase as a trade-mark.

\Ve have neither the machinery nor the experience to do this. .::

1054 FEDERAL TRADE COMMISSION DECISIOI\S Ovinion 31 If. 'r. C.

Yet in the instant case ",YO have oycrrulEcl the Patent Commissioner\; certificate and the administrative decision of the Collector of Customs invalidating their decisions in both instances on the sale testimony of witnesses calleel for the prosecution, with no opport.unity for any other person to challenge their statements except the defendant. , wi(:11 Opinions and impressions-they blossom everywhere and proper selection 4 witnesses ,Yill al"ays CQlIle up "lith t1J8 ' light answers -a dozen 1'01' the prosecution-a dozen for the defense- depending on who cans them. .Under most circmnstances these \\it nesscs clutter up a record and ,,,aste the taxpaye.s' money with no other results than the pitting of one set of propaganda agr:inst. another.

:Kine years ago, in Fede' i'all''llde COJn1ni88ion llanhatlan Bre' ing Oompany, Docket 4572, I observed: Both the Government and defense attorneys lay greftt stress on their public witnesses. (A public itness is a pe1'50n you pull oft' the street or get f1'om. the telephone book. They come to court. and ten what. impression the.y got from a sign, a label, or an advertisement. Theoretically, they are not generally supposed to know what it is all about until they are on t.he stand-to believe this would test the credulity of ally mnn. ) The "\vitnesses "were honest enough. They WllSthought they were giving 'impressions': but for the most part it predelictioTls they wcrc revealing. '"

11:ost publi" witnesses are disposed to stay Qut of trouble with Uncle Sam. ,Vhen a l ederal offcer orders a citizen to appear in discover Uncle Sam only ants :Y011 as a.court, it's a great relief to public witness instead of as a private defendant. This relief, coupled It ex-with pride in helping Uncle Sam, does funny things to people. pands their virtue out of an proportion. They become parties to a game and they are out to have their side win, especially if their side is all-powerful Uncle Sam.

As for the defendant's public witnesses, a la "yel' never combs the country for witnesses against his own client. Through the years have become convinced public w.itness testimony on ' impressions' is not worth a 'continental'.

In the light of our paltry appropriations, stamping out monopoly, restraints of trade and gross unfair acts in commerce is a grim business. For failure to maintain competitive freedom will slide our economy into either communal or a totalitarian decline. ,V' e should not squander our appropriations on cases such as this . In tile instant case the GoverrJrnent adjourned the trial In Xcw Yo!'k and went to Dullas, Texas, wbere a local sewing machine mercbant bat! sold (Jefendnnt' s m:H'hinfCs after the foreign-marketing label had been defllced. STANDARD SEWING EQUIPMENT CORP. ET AL. 1055 1012 Orller but stick to what Chairman I-Imyrey has often referred t.o as "hard core violations.

I join in Commissioner Gwynne s dissent.

FLKAI.J ORDER R.respondents, Standard Se'iving Equipment Corporation, a corporation, and 'Villiam J. IIackett and Harry 1C1'011: individually and as offcers of said corporation having filed on Apri112 1954, their appeal from the initial decision of the hearing examiner in this proceeding; and the matter having been heard by the Commission on briefs and oral argument; and the Commission having rendered its decision granting in part and denying in part said appeal: I t is oiYlel'ed That the order contained in the aforesaid initial decision, be, and it hereby is, modified to read as follmvs : J t is ordered That ihe respondents, Standard Sei,ing Equipment Corporation, a corporatioll, alld "'Villiam J. I-Iackett and Harry 1(1'011 individually and as offcers of said corporation directly or through any corporate or other device in connection with the offering for sale sale or distribution of sewing machine heads Or sewing machines in commerce, as "commerce" is defined in the Federal Trade Commission Act do forth\with cease and desist from: 1. Offering for sale, selling OJ' clistl'ibutillg foreign-made ,sewing machine heads or sewing mac.hines of which foreign-made heads are a part, without clearly and conspicuously disclosing on the heads the country of origin thereof, in such manner that it calmot readily be hidden or obliterated.

2. rsillg the \yord "Universal,': 01' any simulation thereof as a brand or trade llame to designate, describe or refer to their sewing ma.chine heads or sewing machinps of which the heads are a part unless there appears in connection therewith, in legible and dearly visible marking, the name of the corporate respondent "Standard Sewing Equipment Corporation.

It 7:S i'lli'the'/ ordel' That 'I'ith respect to any issue raised by the complaint other than those to ,,-which this order relates, the complaint , and the same hereby is, dismissed.

It is leather oTclerccl That the respondents sha)L within sixty (GO) davs a.after service upon them of this order, file "with the Commission a ;eport in writing setting forth in detail the manner and form in \which they have complied with the above provisions. It is further ordered That the initial decision of the hearing examiner, as modified herein, be and it hereby is, affrmed. Chairman Howrey concurring in thb result and Commissioners )fason Hnd G'iy:ynne dissenting.

42:-;,":J-38- 1056 FEDERAL TRADE C01\:VIISSIO'i DECISIOKS Decision 51 F.