Jean Vivadou and Henry G. Ludin, doing Dusiness as Jean Vivadou Company

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

IN THE MATTER OF JEAN VIVADOU AND HENRY G. LUDIN, DOING DUSINESS AS JEAN VIVADOU COMPANY CO:\IPLAINT, FINDINGS, AND ORDER IN REGARD TO Tile ALLEGED VIOLATION OF SEC. 5 OF AN ACT OF CONGRESS APPROVED SEI'T. 26, 1914 Docket 2820. Complaint, May 26, 1936-Decision, Dec. 8, 1936. Where two partners engaged in the manufacture and sale of toilet sundries, and with principal and only office or place of business in New York City- (a) Represented, through use of the word "Paris" in their letterheads, circulars, containers, and advertising matter, that they maintained offices in said city, notwithstanding fact they had no ofiice, factory, or branch in said city, or in any other city or town so named, with result that a substantial portion of purchasing public was led to believe that their said products were made in or imported from France, for the toilet articles of which there is a well-known and marked preference on the part of many members of said public;

(b) Described a certain toilet article, In invoices, literature, advertising and correspondence, as "Lagoona" and "Sea Sponge," and in circulars nccompanylng the same and in its advertising describing the F>nme as therapeutic, ultra-violet rny treated, and a great health discovery, etc., referred thereto as a "sponge," "Sea Sponge," "\Vonder Sponge," "natural sea growth," "spawned in the romantic far away depths of the South raclfie waters, plucked by adventurous men," and subjected to the "alchemy of the waters of the Pacific Ocean," facts being said article was a vcgeta!Jie which resem!Jlcd an elongated gourd, grown on bushes or shrubs on land nnd known and described ns a "Ioofa," and aforesaid various statements were false; and (c) Described a certnln toilet article, in its invoices, correspondence, circulars ami advertising, as a "Swansdown Puff," facts being said article was not made from that especially grown and treated goose down or swansdown, as known to trade and consuming public and as long thus designated and known, but was made from loose feathers or Marabou nnd was a dechleuly cheap and inferior imitation of the article known and designated by trade as "Swansdown;"

With effect of misleading and deceiving a substantial portion of purchasing and consuming public into erroneous belief that all said representations were true, and Into purchase of their sold products In reliance thereon, and of unfairly diverting trade to them from competitors engaged in the sale in commerce of similar toilet sundries, who truthfully represent the nature and facts of their respective businesses, and character and quality of their respective products, to the substantial Injury of the purchasing public and of other dealers and manufacturers of such sundries In competition with them, and with effect of placing In the hands of wholesalers, jobbers, and retailers the means of making such false and mlslea!llng representa· Uons to the purchasing public, and of thereby increasing their own sales of such dishonestly advertised or represented articles, nnd lessening market JEAN VIVADOU COMPANY 125 124 Complaint for similar good·s sold by other merchants, true nature of which is honestly stated:

IIeld, That such acts and practices were to the prejudice of the publlc and competitors and constituted unfair methods of competition. Defore Mr. John 1V. Norwood, trial examiner. Mr. James M. Ilawmond for the Commission.

Mr. Stephen M. Bell, of New York City, for respondents. COJ.IIPLAINT Pursuant to a provision 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, having reason to believe that Jean Vivadou and Henry G. Lubin, copartners doing business under the firm name and style of Jean Vivadou Company, hereinafter referred to as respondents, have been and are using unfair methods of competition in 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, hereby issues its complaint, stating its charges in that respect, as follows:

PAR.\CRAPH 1. Uespondents, Jean Vivaclou and Henry G. Lubin, are copartners, doing business under the firm name and style of Jean Vivadou Company, with their office and principal place of business located at 135 West 20th Street, New York City, in the State of New York. They are now, and have been, for a long time last past, engaged in the business of manufacturing toilet sundries in the State of New York, and shipping said products, when sold, to the purchasers thereof, some located in the State of New York, and others located in various States of the United States, and in the District of Columbia, and there is now, and has been for more than one year last past, a constant current of trade and commerce by respondents! in the aforesaid toilet sundries. In the course and conduct of their business the respondents are now, and for more than one year last past have been, in substantial competition with other individuals, and with corporations, firms, and partnerships engaged in the sale of toilet sundries bctwcen and among",.., the various States of the United States and the District of Columbia.

PAn. 2. Uespondents market their products under the trade name "De l\[arsay," which name is printed on the containers in which their products are sold, in circulars nccompanying the same, and on its letterheads and other advertising matter.

PAR. 3. In the course and conduct of their business as described in paragraphs 1 and 2 hereof, and for a long time last past, respondents Hfl7;"j(Jm :l!l \"01. :!4 11 Complaint 24 F. T. C. herein, in soliciting the sale of and selling their merchandise in commerce, as defined in said act, make use on their letterheads, circulars, trade literature, and advertising matter, in making and promoting the sales of their products as defined in paragraphs 1 and 2 hereof, of the word "Paris" in a manner calculated, or tending to show, and to represent, either directly or by implication, that they maintain offices at Paris, France, it being well known to respondents that many members of the purchasing public have a marked preference for toilet articles made in and imported from France. By 111.cans of which statements or representations a substantial portion of the purchasing public are led to believe that respondents' products are made in or imported from France.

In truth and in fact respondents have or maintain no office, factory, or plant, in Paris, France, or any other city or town by the name of Paris, and their principal and only office or place of business is located in New York City, State of New York. PAR. 4. In the course and conduct of their business, and for a long time last past, respondents herein are and have been solicitin~ the sale of and selling in commerce, as defined in pttragraph 1 hereof, a toilet article described in their invoices, literature, advertising and correspondence, as:

LAGOON A SEA SPONGE In the circulars accompanying said article and in its advertising, statements are made in reference to the same, such as: THERAPEUTIC Ultra-Violet Ray Treated.

Sea Sponge for Young and Old.

A great health !liscovery-LAGOONA, Spawned in the romantic fur away depths of the South Pacific waters, plucke<l by adventurous men-LAGOONA is then taken to the luborntorles of a natlonnlly known dwml:;t. The aldwmy of the waters of the Puciftc OcPnn is within this Natural !\Pa growth. LAGOONA by ltsPit is a WolHler Spouge, but, with its further treatment nud IHldltlonal llfe-glving forces of Ultra-VIolt>t Rays, it hPl'omes au aid to good lwalth.

In truth and in fact, the article described above is not a '·&a Sponge," is not "Therapeutic," is not "Ultra-Violet Hay Treated," is not "Spawned in the far away drpths of the South Pacific waters," is not "plucked by ad\'enturous men," has never been suhjertpJ to tho "alchemy of the watrrs of the Pacific Ocran," and i:3 not "takea to the laboratories of a nationally known chemi!:it," is not a "Natural JEAN VIVADOU COMPANY 127 124 Complaint sea growth," is not a "'Vander sponge," or a "sponge," but is a vegetable, resembling an elongated gourd, which grows on bushes or ~hrubs on land, and is a vegetable known and described as a loofah. }lar. 5. In the course and conduct of their business, and for a long time last past, respondents have been and are now soliciting the sale of and selling in commerce, as defined in paragraph 1 hereof, a toilet article described in its invoices, correspondence, circulars, and advertising as a "Swansdown Puff."

In truth and in fact, the toilet article designated by respondent as a "Swansdown Puff" is not Swansdown as that article is known to the trade and to the consuming public, but consists of a puff made and manufactured from the feathers of the Marabou, a species of stork.

PAR. 6. The acts and practices of respondent in falsely representing, advertising, marking and branding their products, or containers thereof, in such a manner as to indicate, or to import or imply, that they have an office or branch in the city of Paris, and the practice of falsely marking, branding or representing in their circulars, advertising, or invoices, a toilet article known as a "loofah" as being a "sponge," "Sea Sponge," a "'Vonder sponge" which is "Therapeutic," "Ultra-Violet Ray Treated," "A great health discovery," "Spawned in South Pacific waters," and in the other ways described in paragraph 4 hereof, and the further practice of the respondents in falsely marking, branding, advertising, and selling puffs manufactured from stock feathers as "Swansdown," are all, or any of such representations are, calculated to mislead and deceive, and have and have had the capacity, tendency and effect of misleading and deceiving, and have misled and deceived n substantial portion of the purchasing and consuming public into the erroneous belief that all of said representations are true and to purchase respondents' products in reliance on said rt>presentations. Because of such erroneous beliefs, trade is diverted to respondents from competitors engaged in the sale in interstate commerce of similar toilet sundries. As a result thereof, substantial injury has bet>n and is now be.ing done by respondents to the purchasing public, and othH dealers and manufacturers of toilet sundries who truthfully represent their respective products, in competition with respondents, in commerce among and between the various States of the United States and the District of Columbia. Hespondents have also placed in the hands of wholesalers, jobbers, and retailers, the nwans of making such false and misleading represt>ntations as above dt>scribed, to the purchasing public, by which means, or any of them, they have increased their own sales of said toilet articles so dishonestly advertised or represented, thereby FEDERAL TRADE COl\£MISSION DECISIOXS 128 Findings 24 F. T. C. lessening the market for similar goods sold by other merchants, the true nature of which is honestly stated.

PAn. 7. There are among the competitors of respondents, engaged in the sale of toilet sundries, as set forth in paragraph 1 hereof, individuals, c.orporations, firms, and partnerships, who do have offices or branches in Paris, and who do sell "sponges" or "sea sponges," and who do sell "swansdown" puffs in interstate commerce and so represent their products; and there are likewise other firms, corporations, partnerships, and individuals likewise engaged in interstate commerce, who do not have offices or branches in Paris, who do sell the article known and described as a loofah, and who do sell puffs. made from marabou or stork feathers, which competitors do not in any manner misrepresent the location, nature, or extent of their business, or the nature, source or composition of their products. PAR. 8. The above and foregoing acts, practices and representations of the respondents have been and are all to the prejudice of the public and respondents' competitors, as aforesaid, and have been, and are, unfair methods of competition within the meaning and intent 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."

REPORT, FINDINGS AS TO THE FACTS, AND ORDER 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, on :May 26, 1936, issued and served its complaint in this proceeding upon the respondents Jean Vivadou and Henry G. I...~ubin, copartners doing business under the firm name and style of Jean Vivadou Company, charging them with the use of unfair methods of competition in commerce in violation of the provisions of said act. After the issuance of said complaint, and the filing of respondents' answer thereto, testimony and other evidence in support of the allegations of said complaint were introduced by James 1\I. Hammond, attorney for the Commission, before John ,V, Norwood, an examiner of the Commission theretofore duly designated. by it, and. in opposition to the allegations of the complaint by Stephen M. Bell, attorney for the respond.ents; and said testimony and other evid.ence were duly recorded and filed in the office of the Commission. Thereafter the proceeding regularly came on for final hearing before the Commission on the said complaint, the answer hereto, testimony and other evidence and brief in support of the complaint; and JEAN VIVADOU COMPANY 129 124 Findings the Commission having duly considered the record, and being now fully advised in the premises, finds that this proceeding is in the interest of the public and makes this its findings as to the facts and its conclusion drawn therefrom:

FINDINGS AS TO Tile FACTS PARAGRAPH 1. Respondents, Jean Vivadou and Henry G. Lubin, are copartners doing business under the firm name and style of Jean Vivadou Company, with their office and principal place of business located at 135 'Vest 20th Street, New York, in the State of New York. They are now, and have been, for a long time last past, engaged in the business of manufacturing toilet sundries in the State of New York and shipping said products, when sold, to the purchasers thereof, some located in the State of New York, and others located in various States of the United States and in the District of Columbia. There is now, and has been for more than one year last past, a constant current of trade and commerce by respondents in the aforesaid toilet sundries. In the course and conduct of their business the respondents are now, and for more than one year last past have bee~ in substantial competition with other individuals, and with corporations, firms, and partnerships, likewise engaged in the sale of toilet sundries, in commerce between and among the various States of the United States and in the District of Columbia.

PAn. 2. In the course and conduct of their business, respondents herein, in soliciting the sale of anu selling their merchanuise in commerce, as herein set out, make use in their letterheads, circulars, containers, and advertising matter of the word "Paris" in a manner calculated to, and having the effect of serving as a representation that they maintain offices at Paris, France. It is well known to respondents and to the trade generally, that many members of the purchasing public have a marked preference for toilet articles made in and imported from France. By means of said statements or representations, a substantial portion of the purchasing public is led to believe that respondents' products are made in, or imported from, France. In truth and in fact, respondents have or maintain no office, factory, or branch, in Paris, France, or any other city or town by the name of Paris. Their principal and only office or place of business is located in New York, State of New York.

PAn. 3. In the course and conduct of their business, respondents herein are now, and have been, soliciting the sale of and selling in commerce as defined in paragraph 1 hereof, a toilet article described in their invoices, literature, advertising and correspondence, as: Findings 24F.T.C.

LAGOON A SEA SPONGE In the circulars accompanying said article and in its advertising, statements are made in reference to the same, such as: THERAPEUTIC Ultra-Violet Ray Treated Sea Sponge for Young and Old A great health discovery-LAGOONA, Spawned in the romantic far away depths of the South Pacific waters, plucked by adventurous men-LAGOONA is then taken to the laboratories of a nationally known chemist. The alchemy of the waters of the Pacific Ocean Is within this Natural sea growth. LAGOONA by itself is a Wonder Sponge, but, with its further treatment and additional lifegiving forces of Ultra-Violet Rays, it becomes an aid to good health. The article described above is not a "Sponge," a "Sea Sponge," or "Wonder Sponge," or a "Natural sea growth," was not "Spawned in the romantic far away depths of the South Pacific waters," was not "plucked by adventurous men," and has never been subjected to th~ "Alchemy of the waters of the Pacific Ocean," but is a vegetable resembling an elongated gourd which grows on bushes or shrubs on land, and is known and described as a "loofah." PAn. 4. In the course and conduct of their business, respondents have been, and are now, soliciting the sale of and selling in commerce as defined in paragraph 1 hereof, a toilet article described in its invoices, correspondence, circulars and advertising as a "Swansdown Puff."

This toilet sundry designated by respondents as a "Swansdown Puff" is not made from Swansdown as that article is known to the trade and to the consuming public but consists of a. puff made and manufa.ctured from Marabou, a trade name for loose feathers of various types, usually used for trimming women's clothing. Swansdown is now, and for many years past has been, a trade name used to designate especially grown and treated goose down, and by such name it is known to the trade nnd the purchasing public. It is procured principally from France and is obtained by plucking the large feathers from ge~se while growing so that when mature the birds' skin is covered only with down. The geese are then killed and skinned, the skin being tanned with the down attached in the same. manner as a fur. It is from this skin, with the down attached, that Swansdown Puffs am manufactured, by cutting out circular disks of the size desired and sewing them together with the down on the outside. The respondents' alleged Swansdown puffs were not made from JEAN VIVADOU COMPANY 131 124 Conclusion this material, but from loose feathers stitched together, and are a decidedly cheap and inferior imitation of the article known and designated by the trade name "Swansdown".

PAR. 5. The acts and practices of respondents in falsely representing, advertising, marking and branding their products, or containers thereof, in such a manner as to indicate, or to import or imply, that they have an office or branch in the city of Paris, and the practice of falsely marking, branding, or representing in their circulars, advertising, or invoices, a toilet article known as a "Loofah" as being a "Sponge," "Sea Sponge," or a "1Vonder Sponge," or a "Nat ural Sea Growth," and the further practice of the respondents in falsely marking, branding, advertising, and selling puffs manufactured from Marabou feathers a,s "Swansdown," are calculated to mislead and deceive, and have the capacity, tendency, and effect of misleading and deceiving, and have misled and deceived a substantial portion of the purchasing and consuming public into the erroneous belief that all of said representations are true, and into the purchase of respondents' products in reliance on said representations. Decause of such erroneous beliefs, trade is unfairly diverted to responaents from competitors engaged in the sale in interstate commerce of similar toilet sundries, who truthfully represent the nature and size of their respective businesses and the character and quality of their respective products. As a result thereof, substantial injury has been, and is now being, done by respondents to the purchasing public, and to other dealers and manufacturers of toilet sundries in competition with respondents, in commerce among and between the various States of the United States and the District of Cllilumbia.

Respondents have also placed in the hands of wholesalers, jobbers and retailers, the means of making such false and misleading representations as above described, to the purchasing public, by which means, or any of them, they have increased their own sales of said toilet articles so dishonestly advertised or represented, thereby lessening the market for similar goods sold by other merchants, the true nature of which is honestly stated.

CONCLUSION The aforesaid acts and practices of the respondents, Jean Vivadou and Henry G. Lubin, copartners doing business under t}1e ~rm name nnd style of Jean Vivadou Company, nre to the prejudice of the public and of respondents' competitors, and constitute unfair methods of competition in commerce, within the intent and meaning of Section 5 of an Act of Congress, approved September 26, 1914, entitled "An Order 24F. T.C.

Act to create a Federal Trade Commission, to define its powers and duties, and for other purposes."

OUDER TO CEASE AND DESIST This proceeding having been heard by the Federal Trade Commission upon the complaint of the Commission, the answer of respondents, testimony and other evidence taken before John ,V". Norwood, an examiner of the Commission theretofore duly designated by it, in support of the allegations of said complaint, and in opposition thereto, and brief filed in support of the complaint, and the Commission having made its findings as to the facts, and its conclusion that the respondents have 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."

It is ordered, That the respondents Jean Vivadou and Henry G. Lubin and each of them, as individuals and as copartners doing business under the firm name and style of Jean Vivadou Company, or under any other trade name, their representatives, agents, and employees, in connection with the offering for sale, sale and distribution of their products, including toilet sundries, in interstate commerce or in the District of Columbia, do forthwith cease and desist from: (1) Representing through the use of the word "Paris", alone or in conjunction with any other word or words, or through any means whatsoever, that they own, operate, or maintain offices, branches or factories at Paris, France, or at any place other than in the city of New York, State of New York, or where such offices, branches, or factories are actually maintained;

(2) Designating or representing in any manner that the vegetable growth known as a "Loofah" is a Sponge, a Sea Sponge, a 'Vonder Sponge, or a Natural Sea Growth, or making any similar representations;

(3) Using the term "Swansdown" in connection with the word "Puff", or any other word to designate or describe an article unless said article is manufactured from the down of a swan or from the specially prepared skin of a goose with its original down attached; ( 4) RPpresenting an article made from l\Iarabou feathers as being Swansdown.

It ls further ordered, That the respondents shall, within GO days after service upon them of this order, file with the Commission a report in writing setting forth in detail the manner and form in which they have complied with this order.

FALL RIVER WHOLESALE GROCERS' ASS'N ET AL. 133 Syllabus