Magnaflo Company, Inc.

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IN THE J\fA TIER OF MAG)fAFLO COMPANY, INC" ET AL, ORDEr., :ETC. , IN REGARD TO THE ALLEGED VIOLATWX OF THE FEDER.\L TTI.\DE CO:1IlIISSION ACT Docket 8422. Complaint, June 1961-Decision, Dec. reg, 1963 Order reQnil'ing Youngstown, Ohio, manufacturers of a battery adcliti,e Ji:0\YU as "Lifetime Charge" designed to be used in both new and u ed lead acid storage- uatteries, to rease making a variety of false claims for their product in advertising in newspapers, trade publications and salef: literature and on lauels, cartons and other ady€rtising material-including misrepresentations coj1lerning its effectiveness, guarantees, demand and use, endorsements, government approval and tests, as in the order uelow set forth; and to cease using the trade name "Lifetime Charge " for their said product.

COMPLANT Pursuant to the provisions of the Federal Trade Commission Act and by virtue of the a.authority vested in it by said Act, the Federal :.IAG1\';AFLO CO, ) IXC. , ET AL. 2025 2024 Complaint TradeCommission, having reason to believe that 1\Iagnaflo Company, Inc., :1 corporation, and 1Vebster B. Harpman, individually and as an offcer of said corporation, hereinafter referred to as respondents have violated the provisions of said Act, and it appea-ring to the C011lnission that a proceeding by'it in respect thereof "iIuld be in the public interest, hereby issues its complaint stating its charges in that respect as follows:

PARAGRAPH 1. Hesponclent \Iagnaflo Company, Inc., is a corpo. ration organized, existing and doing business under' and by virtue the laws of the Stat e of Ohio, with its offce 'Uld principal place of business Jocated ftt 4132 \Vest l\iarket Street, Youngstown, Ohio. Respondent ,Ycb.'eter B. J-Iarpman is President of said corporation fmd his address is the same as that of the corporate respondent. Saidl'espollclent ,Yebster B. fInrpman formulntes, directs and controls the acts) policies and practices of said corporate respondent including those hereinafter alleged.

PAR. 2. Respondents are no,\" a.nd for the past several years have bee, , engaged in the manufacture, sale and distribution of a battery additive known as "Lifetime Charge, designed to be used in both new a,nd used lead acid storage bllttel'ies. Its chief constituents are l1wgnesiwn sulphate and potas iull sulphat.e. Hespondents cause, fin(l han, caused, said product to be shipped from their place of business in Youngstown, Ohio to ctpalers and others, including members of the public, loea,tecl in the ya.rious States of the l;united States and in the District of Columbia, He.sponclents maintain, a.nd at aD t.times mentioned herein have ma.intainecl, a, course of trade in said product, in commerce, as "COllllerc.e" is clefined in the Federal Trade Commission Act. Respondent s volume of business therein is, and has been, substantial. PAH. 3.:" In the course and conduct of their aforesaid business and for the purpose of inducing the purchase of thejr product, respondent2 have made numerOllS statements find claims conccrnjng said product jn advertisements inserted in llc\yspapers and trade publications in sales literature circulars, testimonials \ letters, ttnd on labels Cfllt,ons: and other arlyertising material circulated and distributed generally throughollt the Gnjted States. Among and typieal, but not all inclusive, of such claims and represent.ations are the followmg:

1. The Guaranteed Battery Additive. The original guaranteed. 2. Is Backed by Ohio Farmers Indemnity Co. *Heported as amenderl by order of Jan. 18 , 19G2. 2026 FEDERAL TRADE C011MISSJON DECISIOXS Complaint G3 F.

3. Two milion users of Lifetime Charge have found it wil do everything we say. Proved by a milion car o\vners.

4. One of the Kation s leading battery makers agrees BATTERY LIFE CA BE I CREASED WITH A CHEMICAL ADDITIVE 5. Get original Lifetime Charge today and drive confidently all year long. 6. " Lifetime Charge" gives a permanent charge to battery. 7. U.S. Government Approved. Xow it' s Lifetime Charge in Fort Knox 8. Lifetime-Charged Batteries hold charge Three Times longer in Ford Plant 9. Free Winter Start Insurance You start or we pay PAn. 4. Through the use of the foregoing statements and claims and others of similar import not specifically set out herein, respondents represented, directly or by implica.tion, that: 1. Said product is uneonclitiona.l1y guara,nteed. 2. Respondents' guarant.ee of performance is backed by the Ohio Farmers Indemnity Cornpan)'.

3. Respondents' product has been used by one million to two million cat owners.

4. A battery manufacturer agrees that battery life can be increased with a chemical additive.

5. H.respondents' product will enable the purchaser thereof to operate his car for a year without battery trouble. 6. Respondents' product will permanently chaTge a battery. 7. Respondents' product is United States Govermnent appro' :ed. 8. Batteries treated with respondents' product have been found by the Ford JIotor Company to hold a. cha.rge three times longer than normal.

9. Respondents insure winter starting or will pay the cost of starting purchasers a.utomobiles.

PAH. 5. The aforesaid statements and representations '''ere false misleading and deceptive. In truth and in fact: 1. The guarantee provided ,vas and is subject to certa-in conditions and limitations not disclosed in the advertisements in which such guarantee representations were made.

2. Respondents' guarantee of performance. or " insurance '" f\ '1inst failure to start is not ba.cked hy the Ohio Farmers Indemnity Company as responclents insurance.e policy with this company is in fact a vehicle and product liability policy only, 3. Respondents: product has not been used a.nc1 proved hy one io two million car owners.

o batt.ery manufacturer hns agreed that the life of a ba tpry can be increased by t.he addition of fl, c.hemic.al additive to the battery. 5. Respondents' product will not insure the purchaser t, hereof a year s operation of his automobile without battery trouble. MAGNAFLO CO. , INC. , ET AL. 2027 2024 Initial Decision 6, Respondents' product will not charge a battery. 7, Respondents' product lms not been approved by the United States Govermnent.

8, J'o test has been made by the Ford Motor Company which found that respondents' product caused a. battery to hold a charge longer than normal.

g, The purchaser of respondents' product will not be insured winter starting of his car as respondents will pay for the starting of the car only once.

PAn. 6* Through the use of the trade name "Lifetime Charge respondents have represented that their product will keep a battery ehnrged for life or that the product will charge or recharge batteries that have become discharged. The name "Lifetime Cha.rge" is false and deceptive. Among other things, said product will not of itself charge or recharge a battery, and it is not a lifetime charge. PAR. 7. The USe by respondents of the foregoing false, misleading and deceptive claims, statements and representations has had, and now has, the ca.pacity and tendency to mislead and deceive a substantial portion of the purchasing public into the erroneous and mistaken belief that such claims, statements and representations were, and are true, and to induce the pubhc to purchase substantial quantity.ies of respondents' said product as a result. of such erroneous and mistaken belief.

PAll. 8. The aforesa.ic1 acts and pract.ices of respondents, as here.in alleged, are all to the prejudice and injury of the public and constitute unfair and deceptive, acts and practices in commerce, within the intent and meaning of the Federal Trade Commission Act. 3fT, .1 ohn W, B1'oo7cfield, Jr. supporting the complaint. Mr. AluM't A. Caretta of Can' etta cD Connilwn for respondent 31agnaflo Company, hw, Mr, Weuste?' B. Harpman pro se.

IXITIAL DECISIO BY JOSEPH 'V. IC\1:F1IIAX , I-IE.'\RING EXAMINER MAY 24 , 1962 The main respondent. here is J\lagnaflo Company, Inc. The other respondent is ,Vebster B. IIarpman, its president. up to the time of the issuance of the complaint, June 2 , 1961, and apparently up to June , 1961. In resigning he apparently sold his o-vllership stock interest to the present principals of the corporation. "Heported as amended by order of Feb. 20 . HJ62. Initial Decision 63 F, THE PROCEEDINGS The complaint herein alleges that respondents have been engaged in the manufacture and sale in commerce of a battery additive known as Lifetime Charge.

Paragraph THREE of the complaint sets forth the alleged representntions-numbered, by amendment, as 1 to 9-made by respond Gnts in conducting their business. The representations are" or "ere that t.he ac1ditive-(l) is guaranteed, (2) is backed by an insurance c.company, (3) is approved by millions of users, (4) is in effect approved by a leading bfltery maker, (5) win result in ye,ar-long driving without battery trouble, (6) win charge and permtLnently charge a battery, (7) is Government approved, (8) has been found by a Ford Plant to hold a charge three times the normal time, and (9) is bac.ked by free winter start insurance. Paragraph FIVE of the complaint alleges that said representations 1 to 9 arc false and misleading and states the alleged actual facts. Respondents eventually stipulated that these representations are misleading, except as t.o 9, and agreed to it cease and desist order with the limitation, however, as to 9 that the order applied only if respondents do not pay for starts as often as necessary. Pa.ragraph SIX , as amended by leave of the hearing examiner alleges that by their use. of the trade name Lifetime Charge respondents have representeel that the additive vdll keep a battery charged for )ife, that actually it wiJJ not charge a battery nor is it a lifet.ime clllrge, and that the name is therefore false and misleading. The e of this trade name, by itseH, which respondents finally stipulated may be. deceptive :' or its use ",dth other wording, which respondents contend cures any deception, presents the chief issue in this case. The llacle name Lifetime Charge, and the other ",vorcling, chief of which is Doubles Battery Life, appear on the front of the paper box (RX 1) in which the additive has been packaged. The first answer to be interposed herein was that by respondent Hn,rpman, ",vho is also an attorney. A motion was also made by him to dismiss the complaint, jssned Tune 2, 1061, on the ground that he was not connected wit.h the corporation when served, but the lnotion ",,,as denied.

The next ans",'Ier to be filed ,yas that of the corporate respondent appearing without attorney although the fLlSwcr is fairly comprehensjre. Finany, pursuant to leavc an amended answer was served in behalf of the corporation by Albert A. Carretta, Esq" attorney of record here. Both answers in behaU of the corporation deny responsibility for acts prior to June 13 1961. MAGl\";AFLO co. I1\C.) ET AL 2029 2024 ll1itial Decision Various issues raised by the answers in this case need not be discussed in view of the stipulation thereafter made herein. A prehearing conference, with 154 pages of lninutes, brought about consents and stipulations on thc record, noted in a prehearing order of February 19 , 1962, practically dispensing with the hearing, and consenting to a cease and desist order as to representations 1- , as well as agreeing that the name Lifetime Charge "may be deceptive As to Lifetime Charge it was stipulated that the question is whether Doubles Battery Life and other accompanying wording removes the possible deception in the trade name. The oral stipulation made on the record at the prehoaring conference is quoted on p. 2 of the prehearing order.

Counsel on both sides are to be commended for their cooperation in avoiding what could have been an unduly protracted hearing with extensive expert as well as consumer testimony. Stipulation-Re 1 to 9 As contcmplated in the prehearing proceedings a formal stipulation, dated March 1, 1962, was executed by counsel supporting the complaint, and by Albert A. Carretta, Esq. , for respondent corp ration, as well as by respondent Barpman individually. The stipula- 60n sets forth the facts much the same as a.llcged in the complaint except that it makes explicit that respondent Harpman was president of the corporation, controlling its practices, and owning its stock, only up to June 13, 1961.

The stipulation admits that respondents in conducting their business made the representations 1 to 9 as alleged, although "some have not been used since 1959" ; t.hat representations 1 to 9 have, in general the me ning severally attributed to them by the complaint, and that Commission witnesses could adequately establish the facts alJegcdly contraclicting said representations.

As to 9 , representing that respondents insure " winter starting although, as alleged in the complaint, the actual guarantee insured starting the car only once - it is stipulated that respondents in some instances did pay more than onco, and it is further stipulated that the new offcers of the corporate respondent do not intend to limit the number of starts to one.

It is further agreed in the stipubtion that CX 1- , 17 and 18, all atta.ched to the stipulation, were. used b:y respondents during the years 1959 to 1961. The exhibits arc mostly advertisements, but include some post.ers and displays. They establish, in general, that commencing in 1959 respondents have been using the trade name Lifetime , : :: Initial Decision 63 F, Charge only in conjunction with Doubles Battery Life plus other wording. * I-Ioweve.r, these exhibits show that the conjunctive wording is secondary not only on the container, as appears by looking at the container, but, as will be demonstrated, also in the advertisements posters, and displays, all of which maximize, emphasize, and reiterate the name Lifetime Charge at the expense of Doubles Battery Life and the other wording.

It is also agreed in the written st.ipulntiol1 tllat the advertisements reproduced in ex 18 , w"which show the use in 1D59 of the representations Permanent Charge and Goyernment Approved (both now discontinued), were placed by certain resc1ling retailers, and that RX a is respondents' cxphnation, namely, the use by mistake of old mats by the retailers, promptly corrected at respondents ' insistence. )1:iich the same a,pplies to ex ID and 20, showing use in ID59 and 1960, of the re,presentation PCrllfment Charge (also now discontinued), and similar1 y explained by the statement in EX 2. It is also agreed in the written stipulation that ex 21 is the paper box col1tnine-r used by respondents in 195D for packaging. The front cont.ains the old and discarded conjunctive representation Gives a Permanent Charge, instead of Doubles Battery Life, the present \Yarding.

It is a.lso provided in the " ritt.en stipulation that, on the facts as ng-reed, it cease and desist order, in t.he wording set forth in said stipulation, may be issued as against representations 1 to 8 - and also as against representation 9 unless respondents will pay for the starting of automobiles the number of times required. (1'0. 10 in the stipnJation.

Stipulation - Re Lifetime Charge Finally, and very importantly, it is stipulated in Paragraph VII of the stipulation that (a) the trade name Lifetime Charge by itself may be deceptive, (b) that for thc past two years respondents have not used it in their achcertising (ine1l1ding the contniner) without other language such as Doubles Battery Life, Gives New Power to Battery, and Helps Keep Battery Fully Charged, and (c) that the eflieaey of the additive does not exceed the claims set forth in (b), It is agreed that the hearing examiner ma,y decide whether the additional la.nguage removes from the trade name the tendency to deceive, and that he may issue an order accordingly. The exact wording of this part. of the stipubtion wil be quoted in the discussion below, . Apparently this was pursuant to an informal arrangement with Commi sfon personnel.

:MAG:,lJAFLO CO, ) INC. ) ET AL. 2031 2024 Initial Decision A hearing was held herein on Iarch 6, 1962, wherein the stipubtion above described and the various exhibits were received in eddcnce. Apart from this, the hearing was used to receive oral argument on the legal issues involved in that respondents' contention that any deceptiveness in the mnne Lifetime Charge is cured by Doubles Battery Life and the other -wording.

Proposed findings and conclusions, as well as proposed order, were submitted by complaint counsel on l\'Iareh 16, 1962, and by counsel for corporate respondent on l\larch 19, 1962, no proposals being submitted by res1Jondent I-Iarpman. The submitted proposals were limited, however, to the question as to whdher any deceptiveness of Lifetime Charge was cured by Doubles Battery Charge and the other wording. The he,aring examiner considers that the agreed facts and proposed Qrder in the written stipulation-particularly as they relate to represent.rJions 1 to 9 and to jurisdictional matters basic to the entire C011p1a.jnr-are further proposals herein submitted jointly by 'both sides. In general, the hearing: examiner accepts them, as appcaTs in the Findings, Conclusions: and Order below.

This, as contemplated by the parties, leaves over only the issuance of furt.her findings and conclusions wanely, as to the deceptivmlcss or non-cleceptivellcss of Lifet.ime Cha.rge with or without additional \'ording, and the insertion of possible additional provisions accordingly in the cease and desist order.

DISC"CSSIO As .3tatecl in Paragraph II of the written stipulation herein respondents' battery additive Lifetime Charge was designed to be used in both ne y and used lead acid storage batteries. The complaint, as amende(l: a.alleges:

Paragraph SIX: Through the use of the Trade name Lifetime Charge respondents have represented that their product wil keep a battery charged for life or that the product wil charge or recharge batteries that have become discbarged. '1'he name Lifetime Charge is false and deceptive. Among other things, said product wil not charge or recharge a battery, and it is not a lifetime cbarge.

The "written st.ipulation st.ates the following: VII, It is further stipulated with reference to the charges set forth in paragraph Six of the complaint relating to the use of the trade name IAfetime Charge:

(a) That the trade name Lifetime Cbarge by itself as descriptive of respondents' products may be deceptive to the purchasing public, (0) Respondents for the past two years have not used tbe trade name Lifetime Charge in their advertising without the addition of other language, sucb 2032 FEDERAL TRADE CO DlISSION DECISIONS Initial Decision 63 F, as Doubles Battery Life, Gives Kew Power To Your Battery, and Automatically Helps Keep Your Battery Fully Charged.

(c) That the effcacy of respondents' product does not exceed the claims set forth in (b) hereof and that counsel supporting the complaint concedes that he has no testimony to offer as to the efficacy of the product with reference to the above three statements in view of the fact that the effcacy of the product relating to these three statements is not qustioned in the com.plaint. VIII. It is further stipulated that Oll the basis of the statements stipulated in Paragraph VII, above, the hearing examiner may make his determination as to Paragraph Six of the complaint and issue his order based thereon after arguments, oral and written, as to the content.ion of counsel supporting the complaint that the trade name Lifetime Charge is deceptive whether or not it is modified by other language and the contention of responuents that the phraseology now used on the Lifetime Charge package, Doubles Battery Life, Gives New PO\ver To Your Battery, and Automatically Helps Keep Your Battery Fully Charged, removes from the trade name Lifetime Charge, the tendency to deceive.

The trade name Lifetime Charge appears prominently in conjunction with Doubles Battery Life, as ,yell as the other two items of explanatory wording, on the front of the paper box conbtiner (RX 1), \which is the principal, although not the only, exhibit in determining the questions now being considered.d. There is reproduced here a facsimile representation, except for color: of said R.X 1. DOUBLES BATTERY L I F E GIVES NEW POWER BATTIIRYTO YOUR :\IAG IAFLO CO. , INC. , ET AL. 2033 2024 initial Decision The na.me Lifetilne. Charge, usually further emphasized, and the c.onjunctive wording, or portions thereof, also appea,r on or in advertisements, posters, and displays, as will be detailed in a later portion of this discussion.

Lifetime Clulrge. Lifetime. Charge.

Lifetime OhaTge In the opinion of the hearing exa.miner the express stipulation of rhe rcspondcnts that the trade na.me Lifetime Charge, used apart from any other wording, "may be deceptive" to the purchasing public is t.antmnount to an admission that the name constitutes lnisrepresentation within the meaning and scope of Section 5 of the Federal Trade OOrn1ni881 On Act. On this stipulation, the hearing examiner rinds that J-,lifetime Charge does constitute such misrepresentation. The stipulation was apparently so intendel!. It is well settled that tendency to deceive is all that is necessary to prove deception under Sectton 5, as contrasted with actual deception. However, it will also be shown now that the same result ftmvs from other stipulated lnatt('rs and from other considerations.

Lijetime Hespondents in the written stipulation agreed that "the effcacy of respondents' product does not exceed the claims set forth in (b) hereof" the said clainls uoing Donules Battery Life, G-iyes Xew Power To Your Battery, and Automatically IIelps Keep Your Battery Fully Charged, It thus seems to be almost expressly agreed t.hat the lifetime effcacy or longevity promised by Lifetime Charge is no more than Doubles Ba.ttery Life and the other t\VO conjunctive elaims. Respondents in effect further agree to this by arguing that Doubles Battery Life and the two other claims limit the meaning of Lifetime Charge, Furthermore, respondents again seem expressly to admit that the lifetime promise of Lifetime Charge is false (as distinguished froln Doubles Battery Life) by a further item in the written stipulation. This is the consent to a cease and desist order LS to representation 6 of 1 to 9 , directing the,m to cease and desist from representing that ihe " product wil charge or permanently charge a battery" (our emphasis) , It is true that Paragraph VIII of the written stipulation seems to limit the examiner to matters stated in Paragraph VII, but it was agreed at the hearing (:\finutes p. 22) that the hearing exam- 2034 FEDERAL TRADE COMMISSION DECISIO Initial Decision 63 F, iner could consider " aU the evidence, which ,,,Quid include the parts of the stipulation relating to representation 1 to 9. )lo1'oovc1' , the hearing examine.r believes and finds that Lifetime Charge means lifetime in a broad sense such as lifetime of the user of the car, 01' of the structural battery. The hearing examiner believes that this would be t normal and reasonable construction on the part of an altoget.her substantial and significa.nt number of consumers.

ChaTge The.re is nothing in Paragraph VII of the stipulation whereby respondents claim that their product is a charge, i. , in the orclina,ry sense of introducing a,n electrical current into a battery. Actually, in Paragraph V (subdivision 6) it is expressly stipulated: Hespondents' product will not charge a battery . In referring here to Paragraph V of the stipulation, the hearing eXil,miner again feels that he is not confined to Paragraph VII, relating only to the three legends appearing with Lifetime Charge.

There can be no doubt, therefore, that the Charge part of Li fetime Charge is clearly deceptive.

Actual.ly) the hearing examiner s construction of the Charge part of Lifetime Charge, and he so finds, is that it is a representation that the additive keeps a batt.ery charged 1Vithout the necessity of charging it with an electrical current-and that it represents that this is true even after the battery has run down, perhaps completely or a.almost so. Again it \yould seem that this \vouldbe a normal and reasonable construction of a substantial and significant number of consumers.

This construction made by the hearing examiner is not too unlike the third item of additional wording, Automatically Helps Keep Your Bn1tely Fully Charged, Doubles Battery Life Gives New Power Keeps Fully Charged The discussion under A has funy disposed of the question as to whet.her Lifetime Charge, apart from the addition of other wording, is clecepti ,.e, It has been found tlmt it definitely is. But the real question in this case, of course, is whether the allegcc11y guaJifying wording such as Doubles Battery Life, more par- :\fag:\"AFLO CO. , INC.; ET AL. 2035 2024 Initial Decision ticuJal'ly, "removcs from the trade name Lifetime Charge the tendency to deceive" (Stipulation, 1 ,w1g!'aph VIII) , Doubles Battery Dje There is no doubt in the hearing cxmniner s mind that, as contended by respondents, the meaning of Doubles Battery Life, at least its primary a,nd n10re natural Il,meaning, is doubles the normal life or longevity of a battery-figured, perhaps, at eightee,n n1On1:hs JOl' normaj usage. This is not. the only meaning, 1mt it deserves serious consideration in connection with respondents' claim that the wording suffciently qualifies any deceptiveness in Lifetime Charge. As already found, of course, Lifetime Charge means a product that ,,-ill keep the batte!'y in action fa!' life, that is, for the life of the user, the ca.r, or the. structnral battery; and it nleans a product which obviates recharge ,,-ith an electrical current. \Vhat does Doubles Battery Life, in its primary meaning of doubling battery longevit.y, do to explain, qualify, or delimit this deceptive lneaning of Lifetime Charge, as herein found? In the heating examiner s opinion, the wording Doubles Battery Life in its primary sense: at least, of doubling battery longevity does indeed qualify and limit the \\"onling of Lifetime Charge, fls responde.nts contend. It limits the claill1 for the additive to doubling the orclinaTY longevity of a battery. It neg1.tes the claim in Lifetime Charge of greater longevity than double the ordinary battery longevity than double the ordinary battery longevity. To be sure, the Charge part of Lifetime Charge is not negated, but this may not be too important if the word Charge represents merely that the battery can be kept charged without an electrical.l current. However, this conclusion that there is adequate qualification is not beyond question or doubt, It may ",ell be argued that Doubles Battery Life, in its primary meaning of doubling longevity, simply adds confusion to confusion, and it may be argued that it strikes such a discordant note in relation to Lifetime Charge, playing the word Life against Lifetime, as reasonably to cause this confusion. may further ",el1 be argued that sneh possible confusion is greatly increased by reason of the fact that Lifetime Charge is a somewhat technical and functional representation for laymen to grasp and also because it is not categorically denied, in fact not denied at all as to the Charge part, the deceptiveness of which seems to be admitted by the stipulation, On this argument, Lifetime Charge in its full meaning might stil, in spite of Doubles Battery Life, be believed by the consumer, perhaps psychologically motivated by the "big lie" tech- .

Initial Decision 63 F.

niqne, even if not used deliberately, and further influenced by the Jaw price of $1.69 for the additive.

1\101'eove1' , and even more importantly, Doubles Battery Life also has a. secondary meaning of doubles the liveliness or strength of the batte.ry an alleged additional effect which respondents have expressly claimed for the adc1itiye in some of their aclverbsements. Tllis secondary meaning is consistent, or at least not inconsistent with Lifetime Charge, and therefore when llsed in conjunction with Lifetime Charge, it might be designated .as the natural meaning of Donbles Ba,ttery Life, This secondary meaning of doubling battery liveliness may well be the one tha,t a consmne.r will give to Doubles Batte-ry Life when it a.appears in conjunction wit.h Lifetime Charge. The consumer need hardly have to assume t.hat he is being 1;old ,two difiere-nt and contrary t.things on tl1c same label. Nor, of course, need he assume that Lifetime Charge is false 'or that it means anything less t.han it says as round here. The consumer may well assume ,t.hat Doubles Battery Life does not contradict or negate Lifetime Charge, but that it simply alludes to an additional effect of doubling battery liveliness or vigor, entirely apart from battery longevity. This secondary meaning of Doubles Battery Life ascribed t11creto in this discussion is corroborated by Gives New Pmver To Your Battery. J\1:moreover, respondents have advertised (CX 7) their product as making the Battery R.un Stronger, Last Longer (printed in this order), and have also advertised it as making the battery Snap and Snarl, a cleaT reference to liveliness rather than to longevity. can not be seriously contended, therefore that the secondary meaning ascribed here to Doubles Battery Charge is unrealistic. Accordingly, the hearing examiner affrmatively finds that as a matter of wording alone nel even a.pa.rt from other considerations such as insuficient display prominence, which 'will be d-isr,ussed later, Doubles Battery Life does not remove from Lifetime Charge the tendency to deceive, Giroes New Power To Your Battery This wording represents nothing about the lifetime of the battery, and thus in no way can be construed as limiting the deception contained in Lifetime Charge, as contrasted with Doubles Battery Life in its primary meaning, This Gives K ew Power wording definitely refers to the liveliness of the battery, rather than its life expectancy. Its meanjng, as already noted, js more like the secondary meaning of Doubles Battery Life, which also relates to the quality of battery action, This meaning also fits in with the advertisements of respondents, as above referred to, stating that the additive makes the battery ;

::AGNAFLO CO. , INC. , ET AL. 2037 2024 Inital Decision Snrtp and Snarl, 1Iakes It Run Stronger as well as Last Longer. Accordingly, the Gives New Power wording possibly adds to the deceptiveness of Lifetime Charge, at least to the extent that it does not 'jualify the Lifetime Charge, but UJ1l1istakably and unequivocally adds another claim, namely additional power or liveliness. Helps Keep Your Battery F,tlly Oharged This wording does represent something about the duration of battery life, although perhaps somewhat haltingly, particul:rly in view of the inclusion of the word Helps. Actually the wording is coni3istent with Lifetime Charge, although less categorical, and it seems fairly clear that ma,ny consumers could reasonably construe it a.s affrming, rather than qualifying, the lull deceptive representations of Lifetime Charge.

H the very least this Fully Charged wording adds confusion to confusion in respect to the Lifetime Charge claim as used. It is hereby affrmatively found that the second and third legends appearing with Lifetime Charge, to wit, Gives New Pmver To Your Battery and Automatically Helps Keep Your Battery Fully Charged do llot remove from tile trade mune Lifetime Charge Ule tendency.y to deceive whether these two legends are considered separately, tagot her, or both joined with Doubles Battery Life. Lifetime Charge the Dominant ,y ording Doubles Battery Life Merely Small Print The deception in this case is enhanced by the dominance of Lifetime Charge on the paper box with only one line assigned to Doubles Battery Life, and jnde,ed by the dominance, as well, of the other two legends over Doubles Battery Life. There can be no doubt, as already indicated, that respondents rely primarily on the 'wording Doubles Battery Life to show elimination of any deceptive effect of Lifetime Charge. I-Iowever, even if Doubles Battery Life could be given the most fayorable meaning and construction respondents could ask for is doubtful, beea,use of its "small print" charader, that it could remove the deceptiveness of Lifetime Charge. , and, The front panel of the paper box (RX 1) is 3%" x 2%, as ,,,ill be seen by the illustration above, shows the follo\ying: (1) A,t the top of the panel and in simple printed black lettpTs 3/16" high on a single hne, narrower than the width of the box, appears the wording Douhles Battery Life, 7S0- 01S-- 69-- 129 2038 FEDERAL TRADE COl\L'vIISSION DECISI01\ Initial Decision 63 F, (2) Immediately below this single line appears respondents' stanclard cut, I" high, depicting a battery with the trade name Lifet.ime Charge prominently sprm,cI out in front ancl actually stretched to the full width of the box, in large white letters on a blue backgro\lucl. The word Lifetime is, significantly, the larger 'Of the two words and it appenrs on the upper late.1, left, and the word Cluuge is somewhat smaller and appears on the lQ1yer level, right. (3) Below tile standard cut appears the wording Gives :\e" PO\n?T To Your Battery, but in large printed black letters spread on three lines -and 'Occupying a space over 1//' high - thus minimizing the single line of Doubles Battery Life at the top of the box, or consolidating with the latter s small black lettering to give it the secondary meaning of liveliness.

Below this New Power wording there in t.urn appears the ,yarding Helps Keep Your Battery Fully Charged, in '1'white letters on a blue background 1%," high, and itself occupying two lines - thus defmite)y minimizing the single line of Dou1bles Bakery Life at the top of the box, and, with its color print and its longevity implication consolidat.ing "with the color print and the Lifetime of Lifetime Charge.

Accordingly it is clear that Doubles Battery Life is completely dwa.rfed and rendered quite inconsequential by all the 'Other \'ording on the box, including Lifetime Charge in particular; or at the very best for respondents it. is relegated to its secondary meaning of battery power or Eveliness, It is dwarfed by Lifetime Charge, with its admitted deception:-uess as to the effect of .the additive on the longevity of the battery, It is dwarfed by the ew PO\yer wording, 'Or merged into this wording, which states nothing about t.he longevity of the battery and in effect tends to relegate Doubles Battery Life. to its secondary meaning of increasin power a.nel li veJiness. It is dwarfed by the Battery Fully Charged wording, which supports the deceptive representation in Lifetime Cha.rge and ViSllfll1y merges into LifetilHe Charge.

IlJcrenseel Dominance of Lifetime Charge In Ad,'ertisements and Posters The hearing examiner has taken pa.ins to study and compare all of the exhibits (CX 1- , 17, 18) stipulated as used by respondents in the period 1959-1961. These are largely advertisements or " mats lIIAGNAFLO CO. , Th'-c.) ET AI". 2039 2024 Initial Decision of aclveI'tisements as well as posters and display.ys. The advertise. ments and mats disclose the following general pattern: (J) There is a picturization of the entire front of the box container, RX 1 , as heretofore described, although there may be no , there is thecolor as on RX 1 itself. First in this picturization small top line Doubles Battery Life, \vhieh, however, beeomes unreadable or almost unrea,dable in the reduced form of some of the picturizf1, tions. Second, as in EX 1 , underneath Doubles Battery Life is reproduction of respondents' standard cut showing Lifetime. CharQ:e prominently spread out in front of a battery for the fun width of the box. Third, below the standard cut, as in RX 1 appears successh-ely the wording Gives New Power To Your Battery and Automaticany Helps Keep Your Battery Fully Charged, each for more than one line as well as in large type and definitely more prominent than DOllblt' Battery Life, (2) Respondents' standa.rd cut again featuring the nm11e Lifetime Charge spread out in front of a battery, is repeated, (CX 2) for example - this time appearing, of course, without the one- line ,yording Doubles Battery Life found on the box. Furt.hermore, sometimes the name Lifetime Charge is so repeated twice, by showing hvo ,"land. ani cuts, or it is repeated quite a few times by showing it cut of a number of boxes assembled in a cardboard box display tray (CX 17), which itself further features the name Lifetime Charge, (a) The name Lifetime Charge may be featured once more, this time entirely apart. from using the standard cut, but nsnall - by means of large display printing: perhaps white on black or white on blue (CX 2), for example, (4) The wording Doubles Bflttery Life, inconspicnolls as it appears, is either not repeated or, if repeated, is difinitely subordinate to Lifetime Charge (CX 3 5 mat 40), (CX G mat 34), 10 , (.'llewhltt contra, CX 5 mat 37), It may be noted that a number of rhese exhibits play np the secondary meltning of Doubles Battery Life consistent \with Lifetime Charge in its broad sense particularly ex 7 mat 30, displaying the picture of a snarling dog and the claim of Snap a,nel Snarl, as well as ex 1 stating that Y 0111' Battery Leaps With Xew Life, and CX 5 mat 38, stating that It Puts Your Car On The Go, It is thus clearly apparent that as actually used in advertisements the wording Doubles Battery Life has Jittle mitigating effect on Lifetime Charge, a.nd at the very least is quite eon fusing. 2040 FEDERAL TRADE CONIMISSIOX DECISIOXS Initial Decision 63 F, The same conclusion is reached from an examination of the posters and other materials included in the Commission Exhibits enumerated above:

CX 3 is a poster 3' x 1' . Step (1), supra which would show the box front containing at least the words Doubles Battery Life is completely omitted, Step (2), showing the standard cut featuring Lifetime Charge is, of course, included. Step (3), giving independent prominence to Lifetime Charge, is accomplished by setting up the tra.de name in huge blue letters in a space measuring approximately 2' x V2'. Step (4), relating to the minimization of Doubles Battery Life is accomplished by printing the wording in ordinary black ink in a space 3" x 3", as further contrasted with the briliant red lettering, in a space 2' x 1/2 , reading bfakes Your Car Battery Run Stronger - Last Longer and actually giving Doubles Battery Life jts secondary meaning or liveliness.

ing no cuts ex 9 is a poster in reel, black and green, 3' x 2/3' at aD, and simply displaying the tmde name Lifetime Charge in large red letters, with no reference to Doubles Battery Life whatever or to the other two legends.

Similarly on the very small exhibits CX l1(A), (B) and (C), relating to free ,yinier starts insurance, only the trade 11a11e LHetime Charge appears, without any reference whatever to Donbles Battery Life or the other two legends.

In the hearing examiner s opinion, the above review\y thus shows quite beyond doubt that even if the combined representfltions on t.he box (RX 1) did not constitute deception, and would be saved from their ex- deception particularly by the legend Doubles Battery Life, tension and projection into the genentl advertising, poster, and display field lead to such an emasculation of the claimed Doubles Battery Life qualification, and result in such clear emphasis on Lifetime Charge alone, that deception indeed does result or becomes fuJJ-blown.

It is obvious, therefore, that the use of the name Lifetime Charge is the very seed and potently so, of deception in this case irrespective of the claimed quaJiflcations allegedly brought about by Doubles Battery Life or other legends, and that the trade name Lifct1me Charge is the instrumentality of deception or further deception. ,V11en one considers that what consumers must ask for and talk about, particularly under the impact of this kind of advertising , and not any other ,Yorc1il1g there the trade name Lifetime Charge MAG:NAFLO CO,) I , ET AL. 2041 202 Initial Decision can be little doubt as to the conclusion here made that the name is indeed an instrumentality of deception.

LAW In view of the facts in this case, showing, among other things, such confusion of meaning as \vell as complete de-emphasis of the allegedly qualifying wording, it is doubtful that cases cited for respondents by ,,bJe counsel herein can be of much assistance to them, however plausible a legal argument they might present on different facts. :Moreover, there is the curious factor in this case that there is no actual proof "whatever as to the truthfulness of Doubles Battery Life or of the other two legends, or, for that matter, of the additive s having any beneficial effect whatever. Entirely apart from the undoubted burden of proof resting on complaint counsel to prove a case on all the relevant facts, it would be at least somewhat anomalous if the respondents could obtain what in efiect might be deemed to be affrmative equitable relief solely by the use of allegedly qualifying wording the truthfulness of which is an unknown qua.entity. The leading case cited for respondents is O. v. Royal jlfilli:ng 00" 288 FS, 212 (1933), It held that a misleading trade name (there in use some :10 years) should not be completely excised where a Jess drastic remedy is available. I-Iowever, the case must be read in the light of subsequent cases, at least as to the finality of the Commission s determination of the propriety Df excision of a trade. name. Parke, Austin Lipscomb, lnc" v. O" 142 F. 2d 437 (C, 2nc11944), cert. denied 323 LT, S. 753 (1944). Herzfeld v, 140 F. 2d 207, 9 (C, A. 2nd, 1944) Bakers Franchise Oorpo1'tion v, O. (C,A. 3rd, May 1 , 1962). Elliot Knitwear, Inc. v. 266 F. 2d 787 (C, A, 2nd 1959), actually cited in behalf of respondents. In the last case named the Commission, after remand, adhered to its decision excising the name Cashmora in its entirety (Docket No, 6637, October 24 1961; no appeaJ taken). There are some earlier and therefore, perhaps, less persuasive cases cited for the respondents. These cases are also distinguishable from the present case by the simplicity of their product facts Satinized qualified b)' Cotton Fabric (Fluegelman 37 F. 2d 59), White SheJ- Jac by Shellac Substitute (Oassoff, 38 F, 2d 790), and Good-Grape qualified by Imitation Grape (Good-Grape 45 F, 2d 70). In all cases cited by respondents suffcient prominence of the onahfying words is made a prerequisite.

&:

2042 FEDERAL TRADE COMMISSION DECISIO Initial Decision 63 F.

In A7goma L"mber 291 L.S, 67, complete excision of part or the trade name was held proper to prevent confusion. As to confusion it was stated in Ford Motor 00" 120 F. 2d175, 182, as if directed at facts such as in the present case:

The advertisement herein questioned is susceptible to the construction that contain$. two ideas. * '" '" Either idea is gO obscure that one blends into the other.

In Atlanta Sponge Ohamois Oorp" 52 F.T.C, Decisions 500, 581 relating to the trade name Chamois and allegedly qna.1ifying wording, it was stated:

After reading both, the ordinary consumer would ::til not know the truth about the product without resort to speciali7.ed information he does not possess. In determining whether 'Or not there is confusion it must be remembered that the law on unrair trade practices protects the gullible and credulous, as well as the cautious and prudent person. As stated in Florence Mfg, 00 178 F. 78, 75 (C. A. 2nd, 1910), The law is not made for the protection of experts, but for the public-that vast multitude which include the ignorant, the unthinking Hnd the credulous, who in making purchases, do not stop to analyze but are governed by appearances and general impressions.

See also O. v, Standard Education Soci€ty 302 U,S. 112, 116 (1987) .

The following are the Findings of Fact and Conclusions of Law here, , which summarize the findings and conclusions in the decision proper:

FINDINGS OF FACT I. Respondent Iagnaflo Company, Inc. , is a corporation organized, existing and doing business under and by virtue of the laws of the State of Ohio, with its offce and principal place or business located at. 2714 :\fontcJair E" .Warren, Ohio, Prior to the issuance of the complaint its offce and principal place of business was located at. 4182 West Market Street, Y oungst.own, Ohio, Respondent. ""Vebster B. Harpman is an individual and at the time the complaint was issued ,vas president of said corporation. lIis address is 4182 ,Yest Market Street, Youngstown, Ohio. Up to June , 18G1, said respondent ,Yebster B, Harpman formulated, directed and controlled tJJe acts, policies and pra.ctices of the said corporate respondent, including those hereinafter a.1Ieged. II. Hespondents fire n01\' flnd for t.he past several years have bell1. engaged in the manufacture iJJe and distribution of a battery ac1c1itiyc know11 as "Lifetime. Charge designed to be used in both l\fag 1jAFLO CO. , IKC. ) ET AL. 2043 20:?4 Inital Decision new and used lead acid storage batteries. Its chief constituent is magnesium sulphate.

Respondent ::Iagnaflo Company, Inc., now causes its products to be ,hipped from its phce of business in ' Warren, Ohio to dealers and ot.hers, ineJllding members of the public located in t.he various states of the "Gnited States and in the District of Columbia. Prior to the issuance of the complaint said products were shipped by respondents from their place of business in Youngstown, Ohio. Respondents maintain, and at all times mentioned herein have maint.ained. a course of trade in said product, in commerce, as commerce" is defined in the Federal Trade Commission Aot. R.esponc1cnts' volume of business therein has bee.n substantial. III, In the course and conduct of their afores"id business and for the purpose of inducing the purchase of their product, respondents b1ye made numerous statements and claims concerning said product in advertisements inserted in newspapers and trade Pllblicatjme, in sales literature, circulars testinlOnials, letters, and on labels cartons. and other advertising material circulated and distributed gene.rally throughout the United States, Among "nd typic"l, but not. l1-inc.usive of such claims and representations are the followmg' 1. The Guaranteed Battery Additive. The original guaranteed. 2. Is backed by Ohio Farmers Indemnity Co. 3. Two milion users of Lifetime Charge ba ve found it wil do everything we say.

Proced by a milion CRT owners.

4. One of the Nation s leading- battery makers agrees BATTERY Ln E CA BE I);CREASED 'WITH A CHEMICAL ADDITIVE.

5. Get original Lifetime Charge today and drive confidently all year long. G. "Lifetime Charge" gives permanent charge to battery. 7. L"S. Government Approved. Now it' s Lifetime Charge in Fort Knox. 8. Lifetime-Cbarged Batteries bow charge Three Times longer in Ford Plant. 9. Free 'Winter Start Insurance You start or we pay.

J-IOIyever, some of the above quoted statements have not been used since 1959, nmission Exhibits 1 to 15, inclusive, 17 a.nd 18 were used by respondents eluring the years 1959 t.o 1961. COJlJnission Exhibits 16, 19 and 20 arc advertisements of retailers re-.rlling rC2ponc1ents' products to the public, and R.respondents' Exhibi15 2(a), (b) and 3(a), (b) are respondents' expression as to the pllblj(' alioll of Commission Exhibits 16, 19 and 20; and Commission Exhibit. 21 is a box used by respondents for packaging their product 1n lC ;jD.

Initial Decision 63 F.

IV. Through the use of the statements quoted under Paragraph III hereof respondents have represented that:

1. Said product is illconditionally guaranteed. 2, Respondents' guarantee of performance is backed by the Ohio Farmers Indemnity Company.

3. R.csponclents' product has been used by one million to two million car owners.

4. A battery manufacturer agrees that battery life can be increased with a chemical additive.

5, Respondents' product wil enable the purchaser thereof to operate his car for a year without battery trouble. 6. Respondents' product will permanently charge a battery. 7, Respondents' product is United States Government approved, 8. Batteries treated with respondents' product have been found by the Ford :Motor Compa,ny to hold a charge three times longer than normal.

9. l\respondents insure winter starting or will pay the cost of starting purchasers' automobiles.

V. In respect to the foregoing representations, it is hereby found as follows:

1. Tho guarantee provided 'YRS and is subject to certain conditions and limitations not disclosed in the advertisements in which such guarantee representations were made.

2. Respondents' guarantee of performance or "insurance " against bilure to sbut is not backed by the Ohio Farmers Indemnity Company, as respondents' insurance policy with this company is in fact a vehicle and product liability policy only. 3. Respondents' product has not been used and proved by one to two million car owners.

4. No battery n1manufacturer has agreed that the life of a battery can be increased by the addition of a chemical addtive to the battery, 5. Respo11dents' product will not insure the purchaser thereof a year s operation or.his automobile without battery trouble. 6. Respondents' product will not charge a battery. 7. Hespondents' product has not been approved by the United Stfl..es Government.

8. No test has been made by the Ford Motor Company which found that respondents' product caused a battery to hold a charge longer th an normal.

9. Commission Exhibit 11 (c) shows that respondents' guarantee insures winter starting only once. However, in some instances respondents did pay for one or more starts when requested by the pur. MAGNAFLO CO, ) IXC., ET AL. 2045 Initial Decision2024chaser of their product, and the new offcers of the corporate respondent ao not intend to limit the nUlnber of starts to one, as set forth in Commission Exhibit 11(c), Y1. The parties hereto have stipulated that there is a legal and factual basis for issuing a cease and desist order as to the abovenumbered items 1 through 9 in form and wording hereinafter adopted and followed in the order issued below.

Lifetime Charge YII, As further stipuated by the parties herein, it is hereby found as follows in regard to the use of t.he trade name Lifetime Charge: (a) Tlmt. t.he t.trade name Lifetime Charge by it.self as descriptive of n-'sponclents' product may be deceptive to the purchasing public. (b) Respondent.s for the past two years have not used the trade name Lifetime Charge in their advertising without the addition of ot.her h,nguage such as Doubles Battery Life, Gives Kew Power To Your Battery and Autonmtical1y Helps Keep Your Battery Fully Ch,11' ged.

Ie) That the emcacy of respondents' product. does not exceed the Cb: ,l:: set forth in (b) he.reof.

VIII, Supplementing VII (a), in the prior paragraph, it is hereby found and determined that the trade name Lifetime Charge used by itself is false, misleading, and deceptive. The respondents' product is 11either a c11arge nor is it eiIective for a lifetime. IX, o\s to VII (b), it is hereby found and determined that t.he suppkn1entary language Doubles Battery Life, Gives New Power To Your Battery, and Automatically Helps Keep Your Bat.tery Fully Charged does not qualiy the trade name Lifetime Charge so as to remove the deceptiveness thereof.

The wording is even possibly altogether consistent with the deceptive mi representations made by the trade name. To the extent that the wording may be inconsistent with the trade name it is confusing and adds confusion to confusion. F,",thermore, the main part of t.he wording relied on, Doubles Batt.er ' Life, is merely " small print" on the box container, and it has been completely de-emphasized in general advertising, posters, and dispbys, CONCL1JSIOXS , 1, The acts and practices of respondent.s, part.icularly t.he designation of their product as Lifetime Charge, are all to the prejudice and injury of the public, 2046 :FEDERAL TRADE CO:MMISSIO:- DECISIQXS Initial Dedsion 63 F, 2, Such acts constitute unfair and deceptive acts and practices in commerce within the intent and meaning of the Federal Trade Com. mission Act.

3, The deceptiveness of the name Lifetime Charge is not cured by the legend Doubles Battery Life and other legends used, and is reinforced by the way the name and legends have been used, 4. All the allegations of the complaint have been proved, based on all the facts in evidence, including use of the legends relied on by respondents to qualify and cure any deceptive meaning of the name. OImER It is ordered That Magnaflo Company, Inc" a corporation, and its offcers, a,nd ,Vebster B. Harpman, individually, and respondents a.gents, representa6ves and employees, directly or through any corpol' ate or other device, in connection with the offering for sale sale and distribution of their product now known as Lifetime Charge, or any other baHcl'Y additive of substantially similar composition or possessing substantially similar properties, in commerce, as "commerce" is defined in the Federal Trade Commission Aet, do forthwith cease and desist from:

R.representing, directly or by implication, that: (1) Said product is guaranteed unless the lUtture and extent of the guarantee find the manner in which the gua,rantor ,,-ill perform thereunder are clearly and conspicuously disclosed.

(2) Ohio Farmers Indemnity Company, or any other insurance company, insures the performance of respondents product.

(3) S,lid product has been used by one milion, two million, or any other number of automobile owners in excess of that which has used such product, (4) Any battery manufacturer agrees or states that the use of a chemical battery additive will increase the life of a battery, unless such statement is unequivocally made by a battery manufacturer.

(5) The use of respondents' product will enable the purchaser thereof to operate his car free from battery trouble for a year or any other specific period of time. (G) Respondents' product wil charge or permanently charge a battery.

(7) Respondents' product has been approved by the -Cuited States Governnwllt.

:

),fAGX\.A.FLO CO. , IKC. , ET AL. 2047 2024 Opinion (8) Said product has been tested by the Ford Motor Company and found to cause a battery to hold a charge longer than normal, Respondents' product has been approved or has been tested by any organization or agency which has not in fact approved or tested such product; or misrepresenting in any manner the results of tests conducted on respondents product.

(9) Respondents insure winter starting of automobiles or wil pay the cost of starting the automobiles of purchasers of their product, unless respondents wil pay for starting of the automobiles the number of times that may be required, Using the trade name Lifetime Charge, or any other name of the same or similar import, for said product.

:1\1 E IOn.-NDl. l\ -OPIXIOX DECEMBER 26 , 1963 By the Commission:

Before coming to grips with the immediate problem, a short 1'eviel) of the prior proceedings in this case is in order. The complaint, issued June 2, 1961 , and amended February 20 1962, charges that respondents violated Section 5 of the Federal Trade Commission Act by falsely a.advertising a. product designed to be rLdded t.o the electrolyte in Jead acid storage batteries. Responde.nts were alleged to have made nine false or deceptive claims for their product and, through use of the trade name "Lifetime Charge to have falsely "* '" '" represented that their product will keep a battery charged for life or that the product will charge or recharge batteries that have become discharged.

In proceedings before the hearing examiner eight of the separate allegations of deception were disposed of by respondents' stipulation that. the challenged representations were, in fact, misleading. The ninth allegation was settled by agreement as to the form of prohibition to be entered with respect to it. As to the charge that the trade name itself js misleading, the parties stipulated: VII. It is further stipulated with reference to the charges set forth in Para. graph Six of the complaint relating to the use of the trade name "Lifetime Charge (a) That the trade name " Lifetime Charge" by itself as c1escripti"\'e of respondents' product may be deceptive to the purchasing public. (b) Respondents for the past two years have liot used the trade name '; Lifetime Charge" in their advertising without the addition of other language, such .. , , , 2048 FEDERAL TRADE COMMISSION DECISIO::S Opinion 63 F.

as "DOUBLES BATTERY LIFE" GIVES )JEW POWER TO YOUR BAT- TERY" and "AUTOMATICALLY HELPS KEEP YOUR BAT ERY FULLY CHARGED"

(c) That the effcacy of respondents ' product does not exceed the claims set forth in (b) hereof, and that the counsel supporting the complaint concedes that he has no testimony to offer as to the effcacy of the product with reference to the above three statements in view of the fact that the effcacy of the product relating to these three statements is not questioned in the complaint. In a reasoned and persuasive initia.l decision the hearing examiner held "* * * the trade name Lifetime Charge used by itself is false misleading, and deceptive. The respondents' product is neither a charge nor is it effective for a lifetime." He further held that the lallb,1llage used or suggested by respondents for use along -with the trade I1mne did not ameliorate, but possibly actmtlJy added to the deception. Accordingly, he ordered respondents to cease using the trade name: and respondents appealed to the C01wnission. In their brief and argument before the Commission, respondents stont.ly maintained that the trade name was not deceptive when accompanied by such phrases as "Doubles Battery Life Gives ew Power to Your Battery, and "Automatically Helps Keep Your Bat.tery Full)' Charged" , And whiJe contending that the truthfulness of thc.:e statements ,vas not attacked in the c.omp1nini-, responclent I-Iarpmnll at Q, pretrial conference had stated that respondents were possessed of proof that the product would in fact prolong the useful Life of a battery.l No such proof -was introduced, however, and the Comm:5sioll, feeling that evidence on this point would be helpful, on Mardl 29, 1963, directed that the matter be remanded to the hearing exalrliner for the receipt of such additional evidence as may be required for a finding on the issue of whether or not respondents' product wil preserve an existing cbarge in a battery to the extent necessary to give a purposeful and truthful meaning to the word "Lifetime " in tbe trade name.

In the subsequent proceedings before the hearing examiner the matter becml1e bogged do-wn in a -weltcr of conflicting contentions as to ,\which party had the burden of proof, the directed scope of the remand and other procedural diffculties. An interlocutory appeal ,YfLS taken from the examiner s ruling, and the Commission, on J uJy , 19G3 LP. 2201 hereillJ, issued flu order jn which it n..tempted to define with some particularity the fa hion in ,' which the case at page 57 of the record the following eolloquy appears: Mr. Hartman. We can prove that it does exeeed that partlcular phrnse. We have laboratory tests that prove It, and we Ilnd actual tests- Hf'arlng EXllruiuer KAL'FMAX. That wil prove what'! Mr. HARPlIUX. More than double the life."

IAGNAFLO co. INC. ET AL. 204. 2024 Opinion should be processed under the order of remand, On July 19 , 1963 respondents' counsel petitioned us to reconsider our order of July 12 1963 , and that is the present posture of the matter. The proceedings before the hearing examiner on the remand have persuaded the COllmission to reconsider not only its order of July 12 1963, but also its decision and order of remand issued on March 29 1963 (62 F. C. 1531J. This determination is based primarily upon the respondents' disclosure to the hearing examiner that. they have ..,:' '" '" no scientific or similar tests to submit to the Commission" (st.atement filed August 5, 1963) and that a minimul1 of three years would be required to conduct such tests. It thus appears that the minimnl1 time in which the case could be concluded would be three years and it is more than probable that four or five years would pass before it could be finally disposed of. In the meantime the public wouh1 have no protection from the nine misleading claims concerning which there is no dispute and use of the name Lifetime Charge would continue its possible deception. As the record now stands, respondents have admitted that the trade name when unqualified may be deccptive; that it is ambiguous in that it does not disclose the "lifetime:: which will be afrectec1 (i. the batter, the car s or the user s) ; and that the product will not impart a charge to a battery.

'1' 0 continue the trial of this case before the hearing exam iner as we originally ordered obviously would not serve the pulJ1ic interest for the respondents have ma.de it plain that they presently /ul\-e no evidence on the issue of the extent, if any, to ,which their product Iyill preserve an existing charge in a battery and could pl'odm:e such evidence only after a period of prolonged testing. It would be only after such testing that respondents themselves ,vauld know if ;;Lifetime Charge" could in fact preserve an existing charge in a battery. In view of this development, we are setting aside our orders of j):Iarch , 1963 , and July 12, 1963, and are adopting the order contained in the initial decision, prohibiting, intel' alia the future use of the trade name "Lifetime Charge.

An appropriate order in conformity with this opinion will be entered. If in the future the respondents can satisfactorily demonstrate to the Commission that the trade name may be used nolldeceptively, they, of COU1'se, arc free to request appropriate modification of the ordcr.

2 Paragraph VII (11), Stipulation.

3 Pages 17- , oral argument trallscrJvt. 'Item 6, Paragraph V, Stipulation.

2050 FEDERAL TRADE COMl\IISSIO DECISIONS Complaint 63 F, FINAL Order For the reasons set forth in the accompanying memorandum-opinion It is ordered 1. That the orders issued Iarch 29, 1963 C62 F. C. 1531J, llUd July 1 , 1963 (p. 2201 hereillJ, YHeating the hearing exa.miner s initial decision and remanding this case to the hearing examier for further proceedings be, and they hereby are, set aside.

2, That the initial decision, filed 1ay 25, 1962, be, and it hereby is, adopted as the decision of the Commission. 3. That the respondents, :Magnaflo, Inc. , a corporation, and Wcbster B. Harpman, an individual, shall, within sixty (60) days after service upon them of this order, file 1with the Commission a report, in writing, setting forth in detail the lnanner and fornl in which they have complied with the order to cease and desist contained in the initial decision.