James D. Boulger, trading as Eastern Textile Company

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IN THE :MATTER OF JAMES D. BOULGER, TRADING AS EASTERN TEXTILE COMPANY COMPLAINT, FINDINGS, AND ORDER IN REGARD TO THE ALLEGED VIOLATION OF SEC. o; OF AN ACT OF CONGRESS APPROVED SEPT. 26, 1914 Docket 2287. Complaint, Jan. 26, 1935-Decision, July 2, 1935 Where an individual engaged in the sale of cotton remnants by mail order to individual purchasers in the various States; in advertising said remnants in newspapers and magazines of general and wide circulation among the States,- ( a) Offered and described the same as "dress goods" and as "new and clean", and used the words "4 yds. of each or more". to describe the yardage of the remnants sent purchasers, in such a manner as to mislead and deceive the purchasing public into the belief that an of said remnants were suitable for making dresses, and were new and clean goods, and that each pattern or selection sent purchasers would contain four yards or more in one piece, the facts being that most of them were not of sufficient size or quality to be suitable for making dresses and were not new and clean, but contained tears and misprints in tl:Je case of many and were damaged and stained, and none of the selections or patterns sent contained four yards or more of the particular pattern or selection;

(b) Used the statement "5 yds. extra" in offering said remnants, tn such a manner as to cause purchasers thereof to believe that five yards were given with el,!ch order without additional charge, and held out special offers or bargains or prices as available only to buyers making their purchases at once or within a limited period, through using the words "this month" in conjunction with or in close proximity to the words "special offer" or "special bargain", the tacts being he did not give such extra yardage without additional charge, and said special offers, bargains or prices were not thus limited, but were available to any and aU purchasers at any time; and (c) Described said remnants as sold "dir~ct to you" and "direct from the mills", notwithstanding the fact he neither owned nor operated any mill or factory of any kind whatsoever; with the result that the purchasing public was misled into the belief that he owned and operated a mill or factory In which said remnants were produced;

With the effect of diverting business to said individual from competitors, including those who in nowise misrepresent their goods, and with tendency so to divert, to their Injury and prejudice: . Held, That such practices, under the conditions and circumstances set forth, were all to the injury and prejudice of the public and competitors, and constituted unfair methods of competition.

Defore Mr. Edward M. Averill, trial examiner. Mr. 8. Brogdyne Teu, II for the Commission. Mr. T.llf. Hayes, of Greenfield, :Mass., for respondent. EASTERN TEXTILE CO. 127 126 Complaint Complaint Pursuant to the provisions of au 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 having reason to believe that James D. Boulger, doing business as Eastern Textile Company, hereinafter referred to as 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 thereto would be in the public interest, hereby issues its complaint, stating its charges in that respect as follows: PARAGRAPH 1. Said respondent, James D. Boulger, doing business as Eastern Textile Company, is an individual and has his principal office and place of business in the city of Greenfield and in the State of Massachusetts. Said respondent has been for some time past engaged in the advertisement, sale and distribution of dress goods between and among the different States of the United States. Said respondent has advertised, sold, and distributed, and has caused and still causes the said articles in which he deals to be transported from his place of business into and through other States of the United States to various purchasers located at points in the various States of the United States. In the course and conduct of his said business, the respondent is in competition with other individuals, partnerships and corporations engaged in the sale, distribution and transportation of like and similar goods, wares and merchandise in commerce between and among the various States of the United States.

PAR. 2. The respondent advertises his business in newspapers and magazines having general circulation in the various States of the United States. The following statements and representations appear in such advertisements:

[Here appears, stacked one on another, picture of ·5 bolts of materials of various patterns] 15 yds. DRESS GOODS Also Bargain !-This month 97¢ + pstg. Special ofler 5 . yards EXTRA ginghams, percales, prints, volles, chambrays, shirtings, crepes,- etc'."

New clenrt goolls direct ta:you at a big suvlng. Latest assorted colors, 4 yards of each or more. The very newest patterns for dresses. Our finest quality. ~end no money. Pay Postman when llellvered. 13 yards- 97¢ plus delivery charges.

20 yar.ds only $1.29, postage prepaid, If money accompanies order. Satisfaction guaranteed or money back. EASTERS TEXTILE COMPANY Dept. F-69 Greenfield, lias11. l136;}3m-38-Tol. 21-11 128 FEDERAL TRADE COMMJSSION DECISIONS Findings 21 F. 'J C. PAR. 3. Statements and representations made by respondent in his advertising, as set out above, are all and each :false and misleading in that, to wit :

1. The respondent does not give 5 yards extra with each order. 2. Respondent does not own or operate a, :factory or mill, and "direct to you" is :false and untrue.

3. The wares, goods and merchandise are wholly unsuited :for dress purposes.

4. Respondent does not refund money to dissatisfied customers. 5. The statement, "15 yards dress goods-97¢" is not true in that the said respondent does not give 15 yards :for 97¢. 6. The 15 yards of goods are not a special bargain any month, as advertised by the respondent.

7. The goods, wares and merchandise of said respondent are not ''clean" as advertised by him, but are soiled, stained and damaged . . 8. The statement "4 yards of each (pattern) or more" is misleading in that purchasers believe they will receive 4 yards of each pattem in one piece. In truth and in fact, no piece of goods contains 4 yards of the same pattern.

9. The statement "the very newest, latest patterns for dresse;;:' is :false in that such patterns as delivered are not the latest. · · PAR. 4. The above representations made by the respondent are each and all to the injury and prejudice of the public and of respondent's competitors, 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 OnnEn Pursuant to £he 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 s~rved a complaint upon the respondent James D. Boulger, trading a~ the Eastern Textile Company, charging said respondent with the use .o£ unfair methods of competition; in interstate commerce in violation of the provisions of Section 5 of said Act. ' Respondent having entered his appearance· rit;d filed his answer to said complaint hearings were hU;d ~nd evidence in~ro~uced in support of th~ allegations of the complaint and on behalf of the respondent. Subsequent to said hearings counsel for the Commission ' .) •. I -I EASTERN TEXTILE CO. 129 '126 Findings and for the respondent entered into a stipulation of the facts of the case and it was further stipulated by and between counsel for the Commission and counsel for the respondent that the Commi~sion might make and serve upon the respondent an order to cease and desist from the unfair methods of competition alleged in the complaint. Thereupon this proceeding came on for final hearing and the Commission having duly considered the record and being fully advised in the premises makes this its findings as to· the facts and its conclusion drawn therefrom.

FINDINGS As TO Tile FACTS PARAGRAPH 1. The respondent James D. Boulger, trading aa the Eastern Textile Company, has his principal office and place of business in the city of Greenfield, State of Massachusetts. PAR. 2. Respondent is now and has been for more than one year last past engaged in the business of merchandising cotton remnants, selling said remnants by mail order to individual purchasers located in the various States of the United States and in .the District of Columbia. Said respondent in the course and conduct of his business causes said cotton remnants to be transported in interstate commerce from his said place of business in the State of Massachusetts, to, into, and through States of the United States other than Massachusetts to purchasers thereof located in, the various States of the United States and in the District of Columbia.

. PAR. 3. Since the time said respondent has been engaged in the sale and distribution of cotton remnants the public advertising of said respondent has been done by means of newspapers and magazines having general and wide circulation between and among the several States of the United States and in the District of Columbia. PAR. 4. In the advertisements in whi~h the respondent offers for sale the remnants sold as described herein the said respondent uses the words "dress goods" to describe said remnants in such a manner as to mislead and deceiv~ the purchasing public into the belief that all of the said remnan~s are suitable for, making dresses when in fact most of them are not of sufficient size or quality to be suitable for .such purposes. 1 The respondent also uses the statement "5 yds. extra" in advertis~ ing the remnants offered for sale and sold by him in a. manner so.as to .~cause the purchasers of such remnants to believe that five yards of such r~tnnants or dress goods were given with each order without _additional charge. The respondent does not,give five yards extra with each order without additional charge and his use of the said word~ is misleading and deceptive to purchasers and prospective purchasers·. Findings 21F. T. C.

Respondent advertises the remnants sold by him as aforesaid as being sold "direct to you" and "direct from the mills" with the result that the purchasing public is misled into the belief that respondent owns and operates a mill or factory in which said remnants are produced. He does not in fact own or operate any mill or factory of any kind whatsoever, The respondent represents in his advertising of the remnants of. fered for sale and sold by him as aforesaid that special offers or special bargains or prices are available only to purchasers who make their purchases at once or within a limited period, whereas the said special offers, bargains or prices are not so limited but are available to any and all purchasers at any time.

In the advertisements in which the respondent offers for sale the remnants sold as described herein the said respondent uses the words "new and clean" to describe said remnants in such a manner as to mislead and deceive the purchasing public into the belief that all of the remnants are new and clean goods, whereas in fact most of the remnants sold by respondent to purchasers are not new and clean but many of them contain tears, misprints, and are damaged and stained: In his advertising in which the respondent offers for sale the remnants sold as described herein the said respondent uses the words "4 yds. of each or more" to describe the yardage of each remnant sent purchasers in such a manner as to mislead and deceive the purchasing public into the belief that of each pattern or selection sent purchasers there will be four yards or more of it in one piece, whereas in fact none of the selections or patterns sent purchasers by said respondent contain four yards or more of that particular pattern or selection. PAR. 5. During the time above referred to other individuals, firms 1:1nd corporations in the various States of the United States and in the District of Columbia are and have been engaged in the sale and distribution of cotton remnants in interstate commerce and such other individuals, firms, and corporations have caused and still cause their cotton remnants when sold by them to be transported to, and into, the various States of the United States and the District of Columbia. Said respondent has been during the aforesaid time in the sale of his remnants in direct competition in interstate commerce with such other individuals, firms and corporations hereinbefore mentioned. PAR. 6. The~e are among the competitors of the respondent in the sale of cotton remnants those who in nowise mist.;epresent their goods·" and respondent;s acts and practices as hereinbefore set out tend to and do divert business to respondent from his competitors to the in~ jury and prejudice of such competitors.

EASTERN TEXTILE CO. 131 126 Order CONCLUSION The practices of said respondent under conditions and circumstances described in the foregoing findings are all to the injury and prejudice of the public and to respondent's competitors and constitute unfair methods of competition in commerce and are violations of the 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".

ORDER TO CEASE AND DESIST This proceeding coming on for final hearing before the Federal · Trade Commission upon the record, including the complaint of the Commission issued under Section 5 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", and respondent's answer to the Commission's complaint, the stipulation as to the facts of the case entered into by counsel for the Commission snd counsel for the respondent and further agreement by the respondent herein, agreeing and consenting that the Commission may make, issue and serve upon him an order to cease and desist from the unfair methods of competition alleged in the complaint; and the Commission having duly considered the matter and being fully advise9. in the premises- It U! now ordel'ed, That James D. Boulger, trading as Eastern Textile Company, his officers, directors, representatives, agents, :::ervants, and employees in connection with the sale or offering for sale of the £o-called dress remnants in interstate commerce between and among the several States of the United States and in the District of Columbia do cease and desist from:

(1) Using the words "dress goods" to describe or designate remnants sold or offered for sale by respondent unless and until . in conjunction therewith in equally conspicuous letters the word "remnants" appears.

(2) Representing that five yards of each of the remnants are given with each order'unless and until five yards are given with each order without additional charge.

(3) From using the words "direct to you" in conjunction with or in close proximity with the word "mill" and from using the words "direct to you" or "direct from mill" unless and until said respondent owns or operates a mill or factory from which the said remnants are shipped direct to the purchasers of said remnants. DECISION~132 FEDERAL TRADE COl\11\IISSION Order 21F. T.C.

(4) From using the words "this month" in conjunction with or in close proximity with the words "special offer" or "special bargain" unless and until such offers or special bargains are limited to a given month.

(.5) From representing that the said remnants are "new and clean"• unless and until such goods are new and clean and do not contain misprints, stains, and spots.

( 6; From using the statement "4 yds. of each or more" unless and until respondent furnishes four yards of each pattern or selection sent to purchasers.

It is ordered, That the respondent James D. Boulger, trading as Eastern Textile Company shall within 60 days after service upon him of this order file with the Commission in writinfr0 settin"0 forth in detail the manner and form of his compliance with this order.

EXCELSIOR SILVERWARE CORP. 133 Complaint I:N T:iie MATTER OF EXCELSIOR SILVERWARE CORPORATION COMPLAINT AND ORDER IN REGARD TO THE! ALLEGED VIOLATION OF SEC. ::i OF AN ACT OF CONGRESS APPROVED SEPT. 26, 1914 Docket 2386. Complaint, May 13, 1935-order, July 8, 1935 Consent order requiring respondent corporation, its officers, etc., in connection with the advertisement, offer and sale in interstate commerce of silverplated products, to cease and desist from- (a) Use of the words "Sheffield Reproductions" or like or similar words or expressions implying or intending to imply that the said product is made or reproduced in accordance with process employed by the silversmiths of Sheffield, England, in the manufacture of "Sheffield Silverware" or "Sheffield Plate", when such is not the fact; and (b) Use of the word "Sheffield" either independently or in connection or conjunction with any other word or words or in any other way to designate or describe silver-plated ware which has not been made in Sheffield, England, in accordance with the process used by the silversmiths of Sheffield, England, in the manufacture of "Sheffield Silverware" and "Sheffield Plate".

Mr. Marslwll Morgan for the Commission.

Naphtali & Raisman, of New York City, for respondent. Complaint Pursuant 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 pure?oses", the Federal Trade Commission having reason to believe that Excelsior Silverware Corporation, hereinafter referred to as respondent, has been and is using unfair methods of competition in commerce as "commerce" is defined in said act of Congress, 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. Respondent, Excelsior Silverware Corporation, is a corporation organized, existing, and doing business under and by virtue of the laws of the State of New York, with its principal office and place of business at 103-105 :Mott Street in the city of New York. It is now and for more than two years last past has been engaged in the manufacture of silver-plated hollow-ware and in the sale thereof between and. among the various States of the United States. It causes such silver-plated hollow-ware when sold by it to be transported to th,e purchasers th~reof in, th~ State of New York and to Complaint 21 F.T.C. other purchasers located in various other States of the United States and there is now and has been for more than two years last past a constant current of trade and commerce by respondent in such silver-plated hollow-ware between and among the various States of the United States. In the course and conduct of its said business respondent is now and for more than two years last past has been in substantial competition in commerce between and among the various States of the United States, with various other corporations, and with partnerships, firms and individuals engaged in the sale of silver-plated hollow-ware.

PAR. 2. In the course and conduct of its said business described in paragraph 1 hereof the respondent manufactures and sells two principal lines of merchandise, each being a silver-plated hollowware product on which the silver has been deposited by electrolytic process. One of these lines consists of silver-plated nickel ware, the other of silver-plated ware with a base of copper. Respondent company employs a salesman on a commission basis, who calls on retailers, chiefly department stores, in various States with a sample book containing photographs of Excelsior silver-plated products, such products being marked with a style number on said photographs and so billed to the customer on the invoices used by respondent. . PAR. 3. Respondent uses in the manufacture of its products what ts known as the electro-plating process which consists of the deposition o~ an adherent coat of silver on a less noble base metal by passmg an electric current through a bath or electrolyte of silver salts containing ions or atoms of silver in solution. The plated silverware thus produced varies in quality and value according to the composition of the base metal, the workmanship upon its form, including the decoration, and the amount and fineness of the silver deposited upon the base metal. While Federal specifications for silver-plated tableware, including hollow-ware, have been adopted by the Government, no standards have been fixed by the trade for the composition of the base metal nor for the fineness or quantity of silver in the case of silver-plated hollow-ware. The quality of such ware cannot be determined except by laboratory tests and the purchasing })Ublic is obliged to depend upon the reputation of the maker or seller thereof or the reputation of the trade.

PAR. 4. About the year 1742 there was originated in Sheffield, England, a process for the production of silver-plated ware, which process involved the welding of the silver-plate to one or both sides of a sheet or bar of copper to form one thoroughly coherent mass which was rolled to the desired thickness and subsequently worked into the desired form. The ware produced by this process was properly known EXCELSIOR SILVERWARE CORP. 135 133 C<lmplaint as copper-rolled plate, though this name was not used as a trade name or designation. The copper-rolled plate of Sheffield, England, acquired a very considerable reputation for excellence in quality, workmanship and design, and though the name "Sheffield" was not generally impressed upon or affixed to the ware itself, which was identified hy the maker's registered hallmark, the copper-rolled plate came to be generally known and is still known as Sheffield. About a century after the discovery of the copper-rolled silver-plating process above described, the cheaper electro-plating process was discovered, displacing copper-rolled plate, which practically went out of production. Silverware and silver-plated ware made by silversmiths of Sheffield, England, have been and still are highly regarded by the trade and the public of the United States, England, and other countries, as of uniform, reliable, and dependable quality and the words "Sheffield Silver", "Sheffield Plate", and "Sheffield Silver-plate ·ware", When used in connection with silverware or silver-plated ware have signified and denoted and now signify and denote to a substantial portion of the public that such silverware or plated silverware was manufactured in Sheffield, England, and is of the quality which has become associated with that name and industry. While the cheaper electroplating process, as stated, displaced copper-rolled plate, which practically went out of production, there have been and still are from time to time importers of copper-rolled plate in the United States and there is a considerable trade in copper-rolled plate in this country at prices Which reflect not only its value as plated ware but its artistic and historic value as well. The name Sheffield as applied to silver at the present time implies the quality and value peculiar to the copper~ rolled process, as well as the process itself and its use is a representation thereof.

PAR. 5. In the course and conduct of its business as aforesaid respondent company has advertised, does now advertise, and has offered for sale, and sells its silver-plated copper base trays and other articles as Sheffield reproductions, said advertisements being sent to retailers in the several States of the United States, and reading in part as follows:

These four Excelsior Sheffield reproductions brought extra profits to New York Stores.

Beneath the above, printed i~ heavy black type, across a fourpage folder, appear and have appeared photographic representations, respectively, of a vegetable dish, relish dish, and two serving trays, each made so as to imitate the engraving of Sheffield plate and stated to be in each instance" heavily silver-plated copper." Complaint 21 F. T.C. On bills or invoices printed by respondent company and dis· tributed by it throughout various States of the United States to firms and individuals purchasing goods from respondent appears and has appeared the following printed in conspicuous type across the top of said invoices:

Excelsior Silverware Corporation Manufacturers of Silver-plated Sheffield Reproductions.

When in truth and in fact the said silver-plated hollow-ware advertised and sold in interstate commerce by respondent company as "Sheffield Reproduction" and "Sheffield Reproductions" is not and never has been a reproduction in any essential aspect or particular of the famous copper-rolled silver plate of Sheffield, England, variously lrnown by the words or terms "Sheffield", "Sheffield Silver", "Sheffield Plate", and "Sheffield Silver-Plated 'Vare". Said alleged reproductions are not "copper-rolled plate" made by fusing silver plate so as to form one thoroughly united mass and do not contain other fundamental characteristics of "Sheffield" plate in connection with their fabrication, but in truth and in fact are relatively modern imitation plate made by the much cheaper process of electro-plating hereinbefore described, intended to resemble as much as possible in design and appearance the famous and highly valuable Sheffield plated ware, and are neither Sheffield plate nor reproductions thereof.

par. 6. The use by the respondent of the term or words "Sheffield Reproductions", as herein set out is a misrepresentation bf the character and quality of respondent's products and has and has had the capacity and tendency to mislead and deceive the public into the erroneous belief that the silver-plated hollow-ware thus designated and advertised by respondent was and is of the quality and workmanship which have been and still are associated with Sheffield silver, and to purchase respondent's products in such belief; tends to create and does crea~e an undue preference for the silver-plated ware advertised and sold by respondent, and tends to induce and does induce the purchase of such silver-plated ware by a substantial portion of the trade and the public in preference to silver-plated ware manufactured and sold by respondent's .competitors some of whom deal in wares manufactured in Sheffield, England~ and others of whom refrain from the use of such terms in connection with wares not manufactured by the cooper-rolled plate process, of the silversmiths of She:ffield1 England. . , .

EXCELSIOR SILVERWARE CORP. 137 133 Order As a result of such false and misleading representations on the part of respondent trade is diverted to respondent from such competitors in interstate commerce and thereby substantial injury is done and has been done by the respondent to substantial competition in interstate commerce and there is being and has been placed in the hands of respondent's representatives, dealers and distributors an instrument by means of which they mislead and deceive and have misled and deceived the purchasing public.

PAR. 7. Said representations of respondent contained in its respective advertising and mailing matter used by and distributed through respondent's representatives, dealers and distributors, have resulted in injury to respondent's competitors and to retail dealers and to the prejudice of the buying public, and constitute unfair methods of competition 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". ORDER TO CEASE AND DESIST This proceeding coming on for final hearing by the Federal Trade Commission on the record, including the complaint of the Commission issued under Settion 5 of an Act of Congress approved Septem~ her 26, 1914, entitled "An Act to create a Federal Trade Commission, to define its powers and duties, and for other purposes", and respondent's amended answer thereto in which respondent waives hearing on the charges set forth in the complaint, refrains from contesting the proceeding and, pursuant to the provisions of the Commission's Rules of Practice with respect to answers, consents that the Commission may make, enter, and serve upon respondent without a trial, without evidence and without findings as to the facts or other intervening procedure, an order to cease and desist from the method or methods of competition alleged in the complaint; and the Commission having duly considered the matter and being fully advised in the premises- / t is now ordered, That the respondent, Excelsior Silverware Corporation, its officers, agents, servants, and employees, in connection with the advertising, offering for sale, and sale in interstate commerce and in the District of Columbia of silver-plated products do cease and desist from: · (1) The use in its advertising or printed matter distributed in interstate commerce of the words "Sheffield Reproductions" or like or similar words or expressions implying or intending to imply that the said product is made, manufactured or reproduced in accordance with the process of manufacture employed by the silversmiths of Order 21 F.T. C.

Sheffield, England, in the manufacture of "Sheffield Silverware" or "Sheffield Plate" when such is not the fact. (2) The use of the word "Sheffield" either independently or in connection or conjunction with any other word or words or in any other way to designate, describe, or advertise silver-plated ware which has not been made or manufactured in Sheffield, England, in accordance with the process used by the silversmiths of Sheffield, England, in the manufacture of "Sheffield Silverware" and "Sheffield · Plate".

It is furthe-r ordered, That the respondent within 60 days from and after the date of service upon it of this order shall file with the Commission a report or reports in writing, setting forth in detail the manner and form in which it is complying with the order to cease and desist hereinabove set out.

ELECTRO-MAGNETIC BELT CO. ET AL. 139 Syllabus