Baker Paint & Varnish Company

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IN THE MATTER OF BAKER PAINT & VARNISH COMPANY COMPLAINT AND ORDER IN REGARD TO THE ALLEGED VIOLATION OF SEC. 5 OF AN ACT OF C':ONGRF.SS APPROVED SEPT. 26, 1914 Docket 2429. Complaint, June 6, 1935-order, July 29, 1935 Consent order requiring respondent company, Its officers, etc., in connection with the sale, offer or distribution ot paints In interstate commerce, to cease and desist from using the words "Baker's Z & L Combination WHITE Ground in strictly pure Refined Linseed Oil", or the words "zinc and lead" or "zinc lead", or words or initials of like tenor or substance to describe, advertise, brand or label paint or paint pigment, unless and until the pigment in such paint Is composed wholly or lead cnrbonate and zinc oxide, or lead sulphate and zinc oxide in sufficient quantity and proportion to be substantial and effective.

Mr. Astor Hogg for the Commission.

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 purposes", the Federal Trade Commission has reason to believe that Baker Paint & Varnish Company, a corporation hereinafter referred to as respondent, has been and is now using unfair methods of competition in interstate commerce as "commerce" is defined in said act, and it appearing to the Commission that a proceeding by it in respect thereof would be in the public interest, states its charges in that respect as follows :

P .ARAGRAPH 1. Respondent is and at all times hereinafter mentioned was a corporation organized, created and existing under and by virtue of the laws of the State of New Jersey, having its main office and principal place of business in the city of Jersey City in said State. It is and for more than two years last past has been engaged in the business of selling and distributing paint and paint materials to dealers and consumers located throughout the United States and in the District of Columbia, and pursuant to such sales shipments are made to the respective purchasers thereof from respondent's place of business in Jersey City, N.J., into and through various States of the United States other than the State or point of origin of such shipments 1md in the District of Columbia. There BAKER P A.INT & VARNISH CO, 187 186. Complaint are in the United States other corporations, persons, and firms engaged in the business of selling and distributing paint and paint materials who, pursuant to such sales, ship their products into and through the various States of the United States other than the States or points of origin of such shipments, and with such other corporations, persons, and firms respondent is and at all times hereinafter mentioned has been in active and substantial competition. P.AR, 2. Among the products sold and distributed by respondent as set forth in paragraph 1 hereof, is a white paint material which material respondent brands, designates, and describes as "Baker's Z & L Combination 'WHITE Ground in strictly pure Refined Linseed Oil." For more than two years last past respondent has offered for sale and sold and continues to offer for sale and sells said product packed in pails or containers of the capacity of 50 pounds, 25 pounds, and 12¥2 pounds, all conspicuously branded with the words ''Baker's Z & L Combination WHITE Grounq in strictly pure Refined Linseed Oil"; and it has further caused and still causes said product to be advertised, represented, offered for sale and sold as and for, and. under the brand, designation, and description of "Baker's Z & L Combination 'VHITE Ground in strictly pure Refined Linseed Oil", and as and for a product whose pigment is composed 'wholly or in greater part of lead carbonate or lead sulphate and oxide of zinc, or a mixture thereof, whereas in truth and in fact said product is not zinc oxide nor white lead, nor is it a product whose pigment is composed in whole or in greater proportion of lead carbonate or lead sulphate and zinc oxide or a mixture thereof, but the pigment of said product consists principally, predominantly and in greater proportion of other inert materials. The word "Baker's Z & L Combination WHITE Ground in strictly pure Refined Linseed Oil" in the paint trade and to the purchasing and ·consuming public mean a paint pigment consisting of zinc and lead in approximately equal proportions. Respondent's so-called "Baker's Z & L Combination 'VHITE Ground in strictly pure Refined Linseed Oil" product is inferior in quality to said zinc oxide and lead as understood by the trade and purchasing public. · PAR. 3. Respondent's branding and representing and describing its product referred to in paragraph 2 hereof, as "Baker's Z & L Combination WHITE Ground in strictly pure Refined Linseed Oil" and as and for a product whose pigment consists solely or in greater part of lead carbonate or lead sulphate and zinc oxide, or a mixture Order 21 F. T. C. thereof, is false, misleading, and deceptive, and had and has the capacity and tendency to and does mislead and deceive a substantial part of the trade and purchasing and consuming public into the erroneous belief that said product is zinc oxide and lead as under~ stood in paint trade and by the purchasing and. consuming public, or that the pigment of said product is composed of lead carbonate or lead sulphate and zinc oxide or a mixture thereof. PAR. 4. The acts and practices of respondent of branding, selling and representing its said product as hereinabove set forth has the capacity and tendency to, and does, mislead and deceive the pur~ chasing public and places in the hands of dealers in said product a means and instrument for committing fraud and deception upon the public, and a means and instrument by which said product may be and is sold and delivered to and purchased by the purchasing and consuming public under and because of the erroneous belief set forth in paragraph 3 hereof.

PAR. 5. There are, among the 'competitors of respondent mentioned m paragraph 1 hereof, many individuals,· partnerships and corpora~ tions which sell and distribute in competition with respondent, and in interstate commerce, paint materials similar in general appearance to respondent's so-called "Baker's Z & L Combination WHITE Ground in strictly pure Refined Linseed Oil", and which are in fact zinc oxide and lead whose pigment is composed for the greater part of lead carbonate or lead sulphate and zinc oxide or a mixture thereof, which competitors in nowise misrepresent the character of said mate~ rial or its ingredients. Respondent's acts and practices hereinabove set forth have the capacity and tendency to, and do, unfairly divert trade from said competitors.

PAR. 6. The aforesaid acts and practices of respondent. in the sale and distribution of its said product, under the circumstances and conditions set forth herein, are all to the prejudice of the public and of respondent's competitors, and constitute unfair methods of com~ petition 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.

ORDER TO C~SE AND DE~IST I ! { Pursuant to the provision~ of an Act of Congress· approved September 26, 1914, entitled "An Act to create a Federal Trade Com~ mission, to define its powers and duties, and for other purposes", the Federal Trade Commission, on June 6, 1935, issued its complaint BAKER PAINT & VARNISH CO. 189 186 Order against the above named respondent, in which it is alleged that respondent is and has been using unfair methods of competition in interstate commerce in violation of Section 5 of said Act. On June 21, 1935, the respondent filed its answe:t: to the said complaint, wherein it states that it refrain~ from contesting th.e proceedings herein. Pursuant to the provisions of paragraph (b) of Rule V of the Commission's Rules of Practice (a copy of which provisions were set forth in the notice attached to the complaint which was served upon respondent) respondent admits the allegations of the complaint, Waives hearing thereon and authorizes the Commission, without a trial, without evidence and without findings as to the facts or other intervening procedure to make, enter, issue and serve upon it an order to cease and desist from the practices alleged in the complaint, in connection with the sale in interstate commerce of paint; and the Commission being now fully advised in the premises: It is ordered, That respondent, Baker Paint and Varnish Company, its officers, agents, servants, representatives and employees, in connection with, the sale or offering for sale, or distribution of paints in interstate commerce, dp cease and desist from: Using the words "Baker's Z & L Combination 'VHITE Ground in strictly pure Refined Linseed Oil"; or the words "zinc and lead" or "zinc lead", or words or initials of like tenor, import or substance to describe, advertise, brand or label paint or paint pigment, unless and until the pigment in such paint is composed of a combination consisting wholly of lead carbonate and zinc oxide, or a combination of lead ~;ulphate and zinc oxide, each in sufficient quantity and proportion to be substantial and effective.

It is further ordered, That respondent, within 60 days after the ~ervice upon it of this order, shall file with the Commission a reporc in writing setting forth in detail the manner and form in which it has complied with this order to cease and desist hereinabove set out. "' 'l lil:J, 4 1 - ., • Syllabu51 21F.T.C.