Herbert A. Atkinson doing business as Sudbury Laboratory

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

Ix THE LATTER OF HElmERT A. ATKIXSON DOING Bl:SINESS AS Sl:DBl:RY LABOltATORY CO-;SEXT OTIDER , ETC., IX REGARD TO THE ALLEGED VIOLATION OF THE FEDERAL TRADE C03HnsslON ACT Docket 8156. Complaint, Oct. 19GO Decision, Feb. , 1.961 Consent order requiring a seller in Sudbury, :L:Tass. , to cease representing falsely in ad,ertising the qualities of marine paint and metal coating; products he sold, as in tbe order bclmv indicated. CO?IPLAINT Pursua,nt to the provisions of the Federal Trade Commission Act , the Fec1eraJand by virtue of the authority vested in it by said Act Trade Commission\ having reason to believe that. Herbert A. Atkinson doing business as Sudbury Laboratory \ hereimdJer referred to as and it lLppearingresponc1e, has violated the provisions of said Act, to the Commission that a proceeding by it. in respect thereof would SUDBLRY LABORATORY 165 16'1 Complaint be in the public interest, hereby issues its complaint stating its charges in that respect as follmvs:

\RAGRArH 1. IIerbert A. Atkinson is a,n individual doing business as Sudbury Laboratory with his offce tnd principal place of business located at Dutton R.oad, Sudbury, J\fassachusetts. PAH. 2. Respondent is now, and for some time has been, engaged in the advertising, offering for sale, sale and distribution among other things, of a marine paint designated as "Sudbury 365 Bright \V ork Finish" and a coating for metal products known as "Galva- Coat" and the sale thereof to the public a,nel to dealers for resale to the public.

PAR. 3. In the course and conduct of his business, respondent has caused his products, ,yhen sold, to be transported from his place of business in t.he State of JIassachusetts to purchasers thereof located in other States of t.he -enited States, and maintains, and at al1 times mentioned herein has maintained, a substantial course of trade in said products in commerce, as "commerce" is defined in the Federal Trade Commission Act.

PAR. 4. Respondent, in the course and conduct of his business is nmy, and has been, in substantial cOlnpetition, in commerce, with corporations, firms and individuals in the sale of products of the same general kind and nature as those solel by respondent. PAR. 5. In the course and condud of his aforesaid business, and for the purpose of inducing the sale of his products, respondent has caused advertisements to be placed in various publications having a distribution in the vn.rious States of the United States of ,,,which the following is typical:

A8 to S"dbwy 365 Bright Work Finish Sudbury 365 Bright Work Finish" * * not affected by blistering sun, salt water spray, cigarette burns, " 0; * Can he easily brushed or sprayed on in any climate, zero to 100" , '" * Dries dust- free in 15 minutes, and is ready for additional coats in 30 to 40 minutes, with or without standing. Sudbury 365 Bright Work Finish is a liew type of Marine coating and one that has no similarity whatsoever to varnish, lacquer or any other coating now on the market.

Using the newly developed Cre/han base.

Three-year in-use tests in European ami. Tropical waters prove conclusively that this marine finish eclipses any spar varnish now on the market. As to S"db"ry GALV A-COAT Electro-chemical action binds Galva-Coat to the metal in a rust-preventive Hnish that is comparable to hot-dip galvanizing. .. * * Covers 48 sq. feet per pound * * * protects metals like Hot Dip Galvanizing. Complaint 58 F.

PAR. 6. Through the use of the aforesaid statements respondent represented, directly or by implication, that Sudbury 365 Bright Work Finish: (1) is not adversely affected by heat, salt water spray or cigarette burns; (2) can be easily brushed or sprayed on in temperatures from zero to 100' ; (3) dries dust-free in 15 minutes and is ready for additional coats in 30 or 40 minutes with or without standing; (4) is type of marine coating that has no similarity whatsoever to any other coating on the market; (5) three-year end-use tests in European and tropical waters proves conclusively that Sudbury 365 Bright Work Finish eclipses any spar varnish on the market.

Through the use of the aforesaid statements, respondent 'represented, directly or by implication, that Sudbury Galva-Coat: (1) protects metals in the same manner and to the same extent as Hot- Dip galvanizing; and (2) one pound of Galva.Coat wil effectivcly cover approximately 48 square feet of metal. PAR. 7. Said statements and representations were and are, false mislcading and deceptive. In truth and in fact: (1) Sudbury 365 Bright 'W ork Finish will be adversely affected by sun, salt water spray and cigarette burns; (2) it cannot be easily brushed or sprayed at low temperatures such as zero or high temperature such a.s 100 (3) the length of time that will elapse before the product will dry dust free or ,yithi11 ,,,which additional coats may be applied depends upon several factors including the te,mperature, humidity and presence or absence of sunlight. It is, therefore, not possible to fix a minimum time unless such factors are taken into consideration. G"ndcr certain conditions said product would not dry dust free in 15 minutes or be ready for additional coats in 30 to 40 minutes. If the product remains on the surface until it hardens or cnres sand ing will be necessary before another coat is applied; (4) said product is similar.r to other coatings on the llflrket; (5) said product was not subjected to tl1ree year end-use tests, in Enropean or tropical waters or at any other place as ithas not been on the ma.rket for three years; (6) Sudbury Galva.Coat does not protect metals in the same lmmner or to the same extent as I-:ot-Dip galvanizing; (7) one pound of Galva.Coat will not effectively cover 48 square feet of metal. PAR. 8. The use by respondent of the aforesaid false, misleading and deceptive statements and representations has had, and now has the capacity and tendency to mislead a,nel deceive members of the purchasing public int.o the erroneous and 111istakcn belicf that said statements and representations were, and are, true and into the purchase of a substantial number and quantity of respondent's said products because of such erroneous and mistaken belief. As a result thereof, trade has been unfairly divert.ed to respondent from his SUDBURY LABORATORY 167 164 Decision competitors and injury has thereby been done to competition in commerce.

PAn. 9. The aforesaid acts and practices of respondent, as herein alleged, were, and are, alj to the prejudice and injury of the public and of respondent's competitors and constituted, and now constitute unfair and deceptive acts and practices and unfair methods of competition, in commerce, within the intent and meaning of the Federal Trade Commission Act.

Mr. IlfOJ,ton i\7es?nith for the Commission. Respondent for himself.

INITIAL DECISrox BY I-IARRY R. HrXKES, HEARING EXAl\IIXER The complaint in this matter charges the respondent with violation of the Federal Trade Commission Act in connection with the oiIering for sale, sale and distribution of marine paint and metal coating.

An agreement has now been entered into by respondent and counsel supporting the complaint which provides, among other things, that respondent admits all the jurisdictional facts alleged in the COffpbint; that the record on which the initial decision and the decision of the Commission shall be based shall consist solely of the complaint and the agreement; that the making of findings of fact and conclusions of law in the decision disposing of this matter is waived together with any further procedural steps before the hearing examiner and the Commission; that the order hereinafter set forth may be entered in this proceeding without further notice to the respondent and when entered shall have the same force and eiIect as if entered after a full hearing, respondent specifically waiving all the rights it might have to challenge or contest the validity of the order; that the order may be altered, modified, or set aside in the manner provided for other orders; that the complaint may be used in construing the terms of the order; that the agreement is for settlement purposes only and does not constitute an admission by respondent that it has violated the law as alleged in the complaint; and that the agreement shall not become a part of the offcial record unless and until it becomes a part of the decision of the Commission. The hearing examiner having considered the agreement and pro. posed order and being of the opinion that they provide an adequate basis for appropriate disposition of the proceeding, the agreement is hereby accepted, the following jurisdictional findings made, and the following order issued:

1. Respondent Herbert J. Atkinson, erroneously named Herbert A. Atkinson in the complaint, is an individual doing business as Order 58 F.

Sudbury Laboratory \'ith his offce and principal place of business located at Dutton Road, in the City of Sudbury, State of yIassachusetts.

2. The Federal Trade Commission has jurisdiction of the subject matter of this proceeding and of the respondent, and the proceeding is in the public interest.

ommR It is onle'ied. That respondent Herbert J. Atkinson doing,q business as Sudbury L boratory or under any other trade name, l s agents representatives and employees, directly or through any corporate or other device, in connection with the offering for sale, sale and distribution of his products designated as "Sudbury 365 Bright \Y ork Finish" and "Suc1buIJ GalYa-Coat" or any other product of substantially the same composition or properties whether sold under the same or any other name or similar.r products in comme.rce, as "commerce" is defined in the Federal Trade Commission Act, do forthwith cease and desist from representing directly or by implication that: 1. Sudbury Bright "'York Finish is not adversely affected by sun salt water spray or cigarette burns;

2. Said product can be easily brushed or sprayed on at temperatures as low as zero or as high as 100 ; or representing that said product CR,n be brushed or sprayed on at any temperature that is not in accordance with the facts;

3. Said product dries dust-free or is ready for adc1itiona1 coats with or without standing in any specific period of time unless it is stated that such periods will vary depending upon the temperature. humidity and sunlight;

4. It has no similarity to other coatings on the market; 5. Said product has undergone a three year test \which proved that it, eclipses any spar varnish now on the market; or has underunlessgone any tests which prove its superiority in any manner, such is the Jact;

6. Sudbury Galva-Coat protects metals to the same extent or in the same nmnner as Hot-Dip galvanizing;

7. Onc pound of Sudhury GalYa-Coat effectively covers 48 square Jeet oJ metal or elIectively covers any other number of squa.re feet hat is not. in accordance \with the facts. DECISION OF THE CO)DIISSTOX X:'\D Order TO FILE TIEPORT OF C01\fPLIAXCE Pursuant to Section 3.21 of the Commission s Rules of Practice the initial decision of the hea-rin examiner shall, on the 11th day &;

SOMA ADVERTISIKG AGENCY ET AL. 169 164 Decision of February, 1961 , become the decision of the Commission; and n.accordingly;

It i8 O1'dered. That respondent Herbert J. Atkinson (erroneously designat,ec1 in the complaint as I-Ierbert A. Atkinson), doing business as Sudbury Lahomtory, shall, within sixty (60) days after service upon him of this order, fie with the Commission a report in writing setting forth in detail the manner and form in which he has eomplied with the order to cease and desist.