Dixie E. Boyer

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IN THE MATTER OF DIXIE E. BOYER, TRADING AS D. E. BOYER COMI'LAINT, FINDINGS, AND ORDER IN REGARD TO THE ALLEGED VIOLATION · OF SEC. II OF AN ACT OF CONGRESS APPROVED SEPT. 26, 1914 Docket !960. ··Complaint, Apr. 11, 1995-Decision, May 29, 1935 • I Where an individual engaged in the manufacture and sale of stogies and small cigars- ( a) Featured the words "Hand-made" on the inner face of the llds of the containers of said products and also in various places on the outer faces thereof, notwithstanding tact they were not made entirely by hand; (b) Encircled said products with bands containing words "Perfectos lla· banas", notwithstanding fact they were not made of tobacco grown in Cuba; and (c) Featured the words "Wheeling Twins" and "Wheeling Twins Master Qual· ity" on containers of said products, as hereinabove set forth, notwltlJstanding fact they were not made in Whe.ellng; With tendency and capacity to mislead and deceive a large part of purchasing public and trade Into believing said products were made in Wheeling, were hand-made, or made of tobacco grown In Cuba, as the case might be, and into purchasing same In such belief by reason of the preference of n large portion of ·said trade and the public for products thus made or composed, and unfairly to divert trade to said individual from competitors who actually make such products in Wheeling, or ently;"ely by hand, or of tobacco grown In Cuba, and thus represent the same, to the substantial ·Injury of substantial competition In interstate commerce: Held, That such acts and practices, under the circumstances set forth, were all to the prejudice of the public and competitors and constituted unfair · methods of competition.

Mr. John W. Hilldrop for the Commission.

Walker & _Wallcer, of St. Clairsville, Ohio, for respondent. Col\IPLAINT Pursuant to the provisions of an Act of Congress approved September 26, 1914, entitled "An Act to create n. Federal Trade Com· mission, to define its powers and duties, and for other purposes", the Federal Trade Commission, having reason to believe that Dixie E. Boyer, an individual trading as D. E. Boyer, hereinafter called the respondent, has been and is using unfair methods of competition in commerce as "commerce" is defined in said act, and it appearing to said Commission that a proceeding by it in respect thereof .would be in the public interest, hereby issues its complaint stating its charges in that respect as follows:

PARAGRAPH 1. The respondent, Dixie E. Boyer, is an individual trading under the name and style of D. E. Boyer, with her principal Complaint 20F.T.C.

place of business located in the city of Belmont in the State of Ohio. She is now engaged ancl lor n\orJ than two years last past has been engaged at the !)aid city of ~eliJl.ont in t}le bu$iness of manufacturing stogies and small cigars and in t_he sale th~reo~ between and among the various States of the United States. She now causes and for more than two years last p!,lst .has ca~sed such stogies and small cigars, when sold by her, to be transported from her place of business in the city of Belinont aforesaid to the purchasers thereof, some located in the State of Ohio and .others in the various other States of the Uniteq States; and there js now and has been for more than two year~ last past a constant current of trade and commerce by said respondent in such stogies and small cigars between and among the various States of the United States. In the course and conduct of her business respondent is now and for more than two years last l)ast has been in substantial competition with other persons and with corporations, firms and partnerships engaged in the sale and distribution of stogies and small cigars between and among the various States of the United States. PAn. 2. In the course and conduct of her business described in paragraph 1 hereof, respondent, Dixie E. Boyer, trading as D. E. Boyer, in selling and offering for sale the stogies and small cigars manufactured by her, has caused and still causes the word "Handmade" and the words "American 1\Iade", "Wheeling Twins", and "Wheeling Twins Master Quality" to appear and to be featured on the itmer face of the lids of the boxes conta~ning such stogie!) and small cigars, and in various places on tlle outer faces. of such boxes. On certain of the stogies and small cigars sold an9. offered for sale by her, as described in paragraph 1 hereof, the respondent has placed and still places bands encircling such stogies and small dgars, which bands contain and have contained the words "Perfectos Habanas."

PAR. 3'. The word "Wheeling", when applied to stogies and sinall cigars, now means to dealers and to the purchasing public and for more than two years last past has meant to dealers and to the purchasing public that such small cigars and stogi~ are manufaclured in the city of Wheeling, \V. Va.; the \vord "Hand-made", when applied to stogies and s~all cigars for more than two years last past, has meant and still means to the trade and the purchasing public and still means to the purchasing public that such stogies and small cigars are made entirely by hand; the word "IIabana", when applied to stogies and small cigars for more than 'two years last past, has meant to the trade and to the purchash\g public and still means to the trade and to the purchasing public that such stogies D. E. BO~ER 355 Complaint u.ud fimall 1cigars are made fron) tobacco grown on the Island of Cuba., 1 l PAR. 4. There ,is a prderen<;e ,on the part of a large portion of the purchasing public and of a. large portion of the tobacco trade for stogies and ~>mall, ~igars manufactured in Wheeling, W. Va.; there is also Jt preference .or1. the part of a large portion of the purchasing public and of the tobacco trade for stogies and small cigars which are "Hand-made"; there is also a preference on the part of a large· portion of the purchasing public and of the tobacco trade for stogies and small cigars made of tobacco grown in Cuba. 1 truth and in fact, the said stogies and small cigars PAn. 5. In manufactured and sold by respondent neither are nor were manufactured in "Wheeling, )V. Va., but are and were manufactured in the city of Belmont, Ohio, and said stogies and small cigars so manufactured, sold and distributed by the respondent neither are nor were wholly made by hand but are and were partially made by machinery. Also, said stogies and small cigars so manufactured, sold and distributed by respondent neither are nor were made of tobacco grown in Cuba.

PAR. 6. The foregoing false, exaggerated and misleading statements by respondent are -and were made for the purpose, and have and have had a tendency and capacity to mislead and deceive a large part of the purchasing public and the trade and to cause them to purchase the products of the respondent under the belief that they are or were made in Wheeling, ,V. Va., that they are or were hand-made, and that they are or were made of tobacco grown in Cuba. Said false and misleading statements and representations used by respondent as aforesaid have and have had a capacity and tendency to unfairly divert trade to respondent from those of her competitors engaged in a like and similar business, who actually manufacture stogies and small cigars in Wheeling, "\V. Va., , and who designate or brand their products with the word "Wheeling"; and also from those of her competitors who manufacture,..stogies and small cigars entirely by hand and who represent that such stogies and small cigars are hand-made. Said false and, misleading statements and representations have and have had a capacity and tendency to unfairly divert trade to respondent from those of her competitors who manufacture stogies and small cigars from tobacco grown in Cuba. who represent their stogies and small pigars to be made from tobacco grown in Cuba. Thereby substa.ntial injury is done and has been done by respondent to substantial competition in interstate commerce. 356 FEDERAL TRADE COl\IMISSION DECISIONS Findings 20F.T.C.

PAR. 7. The foregoing alleged acts and practices of respondent, Dixie E. Boyer, trading as D. E. Boyer, are each and all to th~ prejudice of the public, and to the competitors of the respondent, and constitute unfair methods of competition in commerce within the intent and meaning of Section 5 of an Act of Congress entitled "An Act to create a Federal Trade Commission, to define its powers and duties, ~and for other purposes", approved September 26, 1914. REPORT, FINDINGS AS TO THE FACTS, AND ORDER Pursuaut to the provisions of an Act of Congress approved September 26, 1914, entitled "An Act to create a Federal Trade Commission, to define its powers and duties, and for other purposes", the Federal Trade Commission issued and served its Complaint upon the respondent herein, Dixie E. Boyer, trading as D. E. Boyer, charging her with the use of unfair methods of competition in commerce in violation of the provisions of said act.

The said respondent thereupon' having entered into 'a stipulation with the chief counsel of this Commission that the Commission might adopt as its findings as to the facts in this proceeding the recitations in paragraphs 1, 2, 3, 4, 5, and .6 of said complaint, that it might draw its conclusion therefrom and that, having made its findings as to the facts and drawn its conclusion therefrom, the Commission might then, without any testimony, proceed to enter an order against the said respondent to cease and desist from the unfair methods of competition in the complaint set out, and the Commission having duly considered the same and being fully advised in the premises makes this its findings as to the facts and conclusion drawn therefrom:

FINDINGS AS TO Tile FACTS PARAGRAPH 1. The respondent, Dixie E. Boyer, is an individual trading under the name and style of D. E. Boyer, with her principal place of business located in the city of Belmont in the State of Ohio. She is now engaged and for more than two years last past has been engaged at the city of Belmont in the business of manufacturing stogies and small cigars and in the sale thereof between and among the various States of the United States. She now causes and for more than two years last past has caused such stogies and small cigars, when sold by her, to be transported from her place of business in the city of Belmont aforesaid to the purchasers thereof, some located in the State of Ohio and others in the various other States of the United States; and there is now and has been for more than two D. E. BOYER 357 353 Findings years last past a constant current of trade and commerce by said respondent in such stogies and small cigars between and among the various States of the United States. In the course and conduct of her business respondent is now and for more than two years last past has been in substantial competition with other persons and with corporations, firms and partnerships engaged in the sale and distribution of stogies and small cigars between and among the various States of the United States.

PAn, 2. In the course and conduct of her business described in paragraph 1 hereof, respondent, Dixie E. Boyer, trading as D. E. B.oyer, in selling and offering for sale the stogies and small cigars manufactured by her, has caused and still causes the word "Handmade" and the words "American Made", "Wheeling Twins", and "Wheeling Twins Master Quality" to appear and to be featured on the inner face of the lids of the boxes containing such stogies and small cigars, ,and in various places on the outer faces of such boxes. On certain of the stogies and small cigars sold and offered for sale by her, as described in paragraph 1 hereof, the respondent has placed and still places bands encircling such stogies and small cigars, which bands contain and have contained the words "Perfectos IIabanas''.

PAR. 3. The word "Wheeling", when applied to stogies and small cigars, now means to dealers and to the purchasing public and for more than.two year~ last past has meant to dealers and to the purchasing public that such small cigars and stogies are manufactured in the city of Wheeling, W. Va.; the word "Hand-made", When applied to stogies and small cigars for more than two years last past, has meant and still means to the trade and the purchasing public and still mean,s to the purchasing public that such stogies and small cigars are made entirely by hand; the word "Habana", when applied to stogies and small cigars for more than two years last past, has meant to the trade and to the purchasing public and still means to the trade and to the purchasing public that such stogies and small cigar~ are made from tobacco grown on the Island of Cuba. PAR. 4. There is a preference on the part of a large portion of the purchasing public and of a large portion of the tobacco trade for stogies and small cigars manufactured in Wheeling, W. Va.; there is also a preference on the part of a large portion of the purchasing public and of the tobacco trade for stogies and small cigars which are "Hand-made"; there is also a preference on the Part of a large portion of the purchasing public and of the tobacco trade for stogies and small cigars made of tobacco grown in Cuba. 101467-37-VOL 20-25 Conclusion 20F.T.C.

PAR. 5. In truth and in fact, the said stogies and small cigars manufactured and sold by respondent neither are nor were manu· factured in Wheeling, '\V. Va., but are and were manufactured in the city of Belmont, Ohio, and said stogies and small cigars so manu· factured, sold and distributed by the respondent neither are nor were wholly made by hand but are and were partially made by machinery. Al,so, said stogies and small cigars so manufactured, sold and distributed by respondent neither are nor were made of tobacco grown in Cuba.

PAR. 6. The foregoing false, exaggerated and misleading state· ments by respondent are and were made for the purpose, and have and have had a tendency and capacity to mislead and deceive a large part of the purchasing public and the trade and to cause them to purchase the products of the respondent under the belief that they are or were made in Wheeling, 1V. Va., that they are or were hand-made, and that they are or were made of tobacco grown in Cuba. Said false and misleading statements and representations used by respondent as aforesaid have and have had a capacity and tendency to unfairly divert trade to respondent from those of her competitors engaged in a like and similar business, who actually manufacture stogies and small cigars in Wheeling, W. Va., and who designate or brand their products with the word "Wheeling"; and also from those of her competitors who manufacture stogies and small cigars entirely by hand and who represent that such stogies and small cigars are hand-made. Said false and "misleading statements and representations have and have had a capacity and tendency to unfairly divert trade to re~pondent from those of her competitors who manufacture stogies and small cigars from tobacco grown in Cuba who represent their stogies and small cigars to be made from tobacco grown in Cuba. Thereby substantial injury is done and has been done by respondent to substantial competition in interstate commerce.

CONCLUSION The foregoing alleged acts and practice,s of respondent, Dixie E. Boyer, trading as D. E. Boyer, are each and all to the prejudice of the public, and to the competitors of the respondent, and consti· tute unfait methods of competition in commerce within the intent and meaning of Section 5 of an Act of Congress entitled "An Act to create a Federal Trade Commission, to define its powers and duties, and for other purposes", approved September 26, 1914. D. E. BOYER 359 353 Order ORDER TO CEASE AND DESIST This proceeding having been heard by the Federal Trade Commission upon the complaint of the Commission and a stipulation entered into between the respondent herein, Dixie E. Boyer, trading as D. E. Boyer, and the chief counsel of this Commission, and the Commis- E>ion having made its findings as to the facts and its conclusion that said respondent has violated the provisions of an Act of Congress approved September 26, 1914, entitled "An Act to create a Federal Trade Commission, to define its powers and duties, and for other purposes:"

Now, therefore, it is hereby ordered, That respondent Dixie E. Boyer, trading as D. E. Boyer or trading under any other name, in connection with the sale and the offering for sale of stogies and small cigars in interstate commerce, forthwith cease and desist from: (1} Causing the word "Hand-made" or any other word or words of similar tenor, import or substance to be used on the inner face of the lids of boxes containing stogies or small cigars, or on any other place on such boxes, or on the bands encircling such stogies or small cigars, or in any other way, until and unless such stogies and small cigars are entirely made by hand;

(2) Using the words .''Perfectos Habanas", "Habanas", "Habana", "Havana", or any other word or words of similar tenor, import or substance on bands encircling such stogies or small cigars, on the boxes containing such stogies or small cigars, or in any other way, until and unless such stogies and small cigars are made from tobacco grown on the Island of Cuba;

(3) Using the words H'Wheeling Twins Master Quality", "Wheeling", "1Vheeling Twins", or any other word or words of similar tenor, import or substance on the boxes containing such stogies or small cigars or on bands encircling such stogies or small cigars, or in any other way, until and unless such stogies or small cigars are made in the city of Wheeling, West Virginia. And it is hereby further ordered, That the said respondent, Dixie E. Boyer, trading as D. E. Boyer, shall within 60 days after the service upon her of this order to cease and desist, file with this Commission a report in writing setting forth in detail the manner and form in which she shall have complied with the order to cease and desist hereinbefore set forth.

Syllabus 20F.T.C.