Baddorff Piano Co

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IN THE MATTER OF HADDORFF PIANO COMP£\NY COMPLAINT, FINDINGS, AND ORDER IN REGARD TO Tile ALLEGED VIOLATION OF SEC. 15 OF AN ACT OF CONGRESS APPROVED SEPT. 26, 1914 Docket 301,1. Complaint, Jan. 27, 1937-Decision, June 5, 1937 Where a corporation engaged In the manufacture of pianos and In sale and distribution thereof to retailers for resale, in competition with those who make and sell such products similar to its so-called "Vertichord Grand" type and not in any way represent their respective products as having mechanical features and othet· proi>erties similar to grand pianos, and thus designate their respective products, and in competition with others who make pianos with same mechanical features and other qualities possessed by grand pianos and do thus designate same; in adn•rtising aforesaid type, among others made and dealt In by it, in periodicals and trade journals of g<'neral circulation, and In pamphlets, folders, suggested sales talks and other advertising literature circulated to Its customers and prospecth·e customers- Made U!>C of word "Grand" In trade name "Vertlchord Grand" to designate and describe Its aforesaid type, and represented that said plano possessed same mechanical or overntlng features as those of the type generally designated and referred to as grand pianos, through such statements ns "• • • designed to • • * maintain grand plano tone quality," "* * * Yolume and tone of a fine grand without taking up a grand's space," "All the advantages of a large grand plano," "• * • deep mellow tone of a large grand piano," and urged, In its said suggested sales talks, use of name "Vertlchord Grund" to describe sold product, and, in Jlllmphlets distributed to retailers for m<•mbers of the purch:.u;ing public, rmphasizcd economy of space along with featured characteristics of the grand, notwithstanding fact It did not have, among distinctive operating or nw<·hanical f<•atures diff<'rent from and In some case9 superior to those of pianos of other tyves, strings placed hot·lzontally, gravity action of hnmmers and shifting soft pedal, and, while possessing tonal qualities comparable to those of baby grand, it did not possess such qualities comparable to those of the large or concert size grand plano;

With tendency and capacity to mislead members of the purchasing public Into tho erroneous and mlstakNt belit•f that Its ~altl pianos, thus de-.lgnnted, posse~sed !;Ume opPratlng or medwnieal features ns present In grand pianos, as long llesiJ,:'nllt('d, described oud known to I•lano trade and purchasing public, and pref<•rrt-d by many users, ond Into pnreha~o-e of Its so-called "Vert!Phord Grand" type plano by reason of sneh bPII<'f, and with f('salt of thcrehy placing In the hands of retailers lnstrunwnt and mean!:! whereby tlwy might mlsr<'present the ol)l'rnting or meebanlcnl features and other pt·opertl('s of said products and imluee members of pur· chasing public to buy the same by rraf;on thereof, and with result that trade was dh erted to It from competitors, likewise engage(\ In dlstribntlon and sale of pianos, who have not made use of like or similar statements and reprPsentatlons in sale of thelr re~pectlve products In commerce: HADDORFI:' PIANO CO. 23 22 Complaint l/eld, That such acts and practices were to the prejudice of the public and competitors and constituted unfair methods of competition. 111 r. J, T. lV el('h for the Commission.

Air. Axel A. llofgren, of Chicago, Ill., for respondent. Col\II'LAINT 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, having reason to believe that Iladdorff Piano Company, a 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 proc<>eding by it in respect thereof would be in the public interest, hereby issues its complaint stating its charges in that respect as follows:

PAR.\GRAPII 1. Respondent, Haddorff Piano Company, is a corporation, existing and doing business under and by virtue of the laws of the State of Illinois with its principal office and place of business located at 1900 Harrison Avenue, in the city of Hockford, State of Illinois. Respondent is now, and has been for a number of years, engaged in the business of manufacturing, distributing, and selling pianos to retail tkalers for resale, in commerce as herein set out. r AR. 2. Respomll:'nt, being engaged in business as aforesaid, causes said pianos, when sold by it, to be transported from its office and principal place of business in the State of Illinois to the respective purchasers thereof located at various points in the States of the United Stn.tes other than the State of Illinois. For more than one yrn r last past, the respondent has maintained n constant current of trade in the pianos manufactured, distributed, and sold by it, in commrrce among and brtween the various States of the United States and in the District of Columbia.

PAn. 3. In the course nnd conduct of its business the respondent is now, nnd has bern for many years, in substantial competition with ot hrr corporations and with firms antl individuals likewise engaged in the busin<'~S of distriLutin~ and selling pianos, in comnwrct. n.among anti bt>tween the various States of the United States and in the n;strict of Columbia.

PAn. 4. One of the various types of pianos manufactm'Cll and distl'ibntrd in commerce as hereinabove set out by the respondent is designated and desnibed by it as the "Vertichord Grand." Upon each of the pianos of this type there is imprinted upon the center of the 24 FEDERAL TRADE COl\IMJSSION DECISIONS Complaint 25 F. T. C. front panel thereof the words "Haddorff Vertichord Grand." In the course of the operation of said business, and for the purpose of inducing customers and prospective customers to purchase said pianos, the respondent has, from time to time, caused advertisements to be inserted<l in periodicals an<l tra<le journals of general circulation throughout the United States and has printed and circulated throughout the several States to said customers and prospective customers, through the United States mails and otherwise, pamphlets, folders, suggested sales talks, and other advertising literature, some of which literature is designed and intended to he used by the retailers purchasing said ·pianos in the offering for sale and sale of respondent's pianos. In said advertising literature above referred to, the respondent has caused its corporate name, Hadclorff Piano Company, to be prominently and conspicuousfy displayed, together with such statements as follows:

Cleverly designed to take much less space than n grand and yet to maintain grand plano tone quality.

Tone of a parlor grand.

It solves the problem of creating a plano that literally has the volume and tone of a fine grand without taking up a grand's space. Iladdorft:'s Ingenious plano engineers have devised a way of using longer strings in less t;;pace (and we can prove the paradox) thus giving full, rounded grand plano tone.

All the advantages of a large grand plano, It has tbe deep mellow tone of a large grond plano. In its suggested sales talk distributed to retailers appear such statements as:

In conversation there Is a tenueu<'y to shorten this to just "Vertlchord''. "Vertlrhoru" indicates "ve1·tical strings" or "vertically strung", but that by itsdf is not a complete description of the lm;tnJment. It Is a horizontal plano, vertically strung. Vertichord Grund is therefore an accurate and proper name. Its constant use In full has been proved to have a ,·ery favorable effect in the promotion and sale of the instrument.

In pamphlets which it distributes to its retailers for distribution to members of the purchasing public in connection with the offering for sale and sale of its pianos appear such statements as: The name chosen for the new Instrument, Vl'rtlchord Grand, is descri!lt!Ye of the new form. In Its main mass and main elrect the plano is horizontal (granu), but at that Jlolnt in the structure of an ordinary grand where the curve in tbe rim begins, the strings are up-enued (which is the significance of "Vert1chord"). The result Is a plano which combines the grace and di'Cornth·e charm of the old svlnet, with the string length, 80undlng board an•a, and general tonal character of a sizeable grand of excellent quality, projects into the room only twenty-five and one-half Inches, and costs much less than any other plano of the same style, appeal and a comparable musical quality. HADDORFF PIANO CO. 25 22 Complaint All of said statements, together with other similar statements not herein set out, purport to be descriptive of the type of pianos manu· factured and distributed by the respondent under the name "Verti· chord Grand." In all of said advertising literature, in the state· ments above set out, and in many other statements, the respondent represents, either directly or through implication, that the type of pianos referred to in said statements is the same as or is comparable to and has the same operating or mechanical features, tonal qualities nnd other merits as the type of pianos generally known to and desig· nated by the trade and public generally as Grand pianos. P A.R. 5. For a period of many years, one type of piano has been designated, described and known, both to the trade and to the purchasing public, as a Grand piano. Many users of pianos have expressed, and actually have, a preference for pianos of this type. Pianos of this type possess distinctive operating or mechanical fen· tures and tonal qualities different from and superior to the operating or mechanical features and tonal qualities of pianos of any other type. Among these features and tonal qualities are horizontal !m·inging, gravity action of hammers, placement and resonance of t:ounding board, shifting soft pedal, superior touch and, in many pianos, the presence of a true sostenuto pedal. When members of the purchasing public purchase pianos designated, described and referred to as Grand pianos, they expect to receive pianos possessing the operating or mechanical features and tonal qualities above 'referred to.

PAn. G. The pianos manufactured and distributed by the respond· ent, in commerce as herein set out, and designated as "Vertichord Gran<l'' pianos do not possess the same operating or mechanical features and tonal qualities as are possessed by the type of pianos generally known nnd referred to as Grand pianos. The so-called "Vertichord Grand" pianos do not possess horizontal stringing of the chords or strings and do not have sounding boards that are placed horizontally or that have the same resonance and tonal qualities as sounding boards found in the type of pianos generally known and ref£'rred to as Grand pianos. The so-called "Vertichord Grand" pianos do not have a gravity action of hammers that strike the strings or chords and do not have the superior touch found in pianos of the type commonly known as Grand pianos. The respondent's so· called "Vertichord Grand" pianos do not have shifti~g soft pedals nnd do not have sostenuto pedals. The general mechanical features nnd tonal qualities of the so-called "Vertichord Grand" pianos are not comparable to the mechanical features and tonal qualities of that type of pianos hereinabove referred to as Grand pianos. 26 FEDERAL TRADE COl\L\USSION DECISIOSS Complaint 2GF.T.C.

PAR. 7. There are among respondent's competitors those who manufacture and sell in commerce, as herein set out, pianos having many of the same mechanical features and tonal qualities as respondent's "Vertichord Grand" pianos and having a similar general appearance to said pianos, who do not, in any way, misrepresent the character and quality of their respective pianos or the mechanical features and tonal qualities thereof and who do not designate their respective pianos of this type as being Grand pianos. There are also among respondent's competitors those who manufacture pianos designated by them as Grand pianos which do have the same mechanical features and tonal qualities possessed by the type of pianos hereinabove referred to as Grand pianos and who truthfully designate their pianos as Grand pianos and truthfully advertise and represent the true character and nature of their respective products. PAR. 8. The acts and practices of the respondent in using the aforesaid statements and representations in its advertising literature and in advertising literature furnished by it to retailers, in offering for sale and selling its so-called "Vertichord Grand" pianos have had, and now have, the tendency and capacity to mislead and deceive members of the purchasing public into the false and erroneous belief that said pianos possess the same operating or mechanical features and tonal qualities pr('sent in pianos of the type generally known and designated as Grand pianos and into the purchase of respondent's so-called "Vertichord Grand'' pianos on account of said belief induced as aforesaid. The acts an<l practices of the respon<lent as hereinabove set out also place in the han<ls of retail <lealers an instrument and a means whereby said retail dealers may misrepresent the operating or mechanical fpatures an<l tonal qualities thereof and induce mPmbrrs of the purchasing public to buy said pianos on account of such misrepresentations. As a result therpof, trade has been unfairly diverted to the respondent from competitors likewise engaged in the business of distributing and selling pianos who truthfully al!\'ertise and represent tlh' nature and character of their re- Sp<'ctive products. As a consequence thereof, substantial injury has lJPen, and is now being, done by r<'spondent to competition, in comm<'rce among unci bt>twe<'n the vurions States of the United Stutes an<l in the District of Columbia.

PAu. 0. The r.bove and ~orc•going acts, practices, an<l representations of the respondent have been, and are, all to the prejnlliee of the public an<l respondent's competitors as aforesaid, and constitute unfair methods of competition within the menninrt an<l intent of Section 5 of an Act of Congress approved 8<'ptember 26, 1914, en- HADDORFF PIA'XO CO. 27 22 Findings titled ".An Act to create a Federal Trade Commission, to define its power_s and duties, and for other purposes." REPORT, Fnmnws AS TO THE FACTs, AND ORDER 11ursuant to the provisions of an Act of Congress approved Sep· tember 26, 1914, entitled "An Act to create a Federal Trade Commission, to cll'fine its powers and duties, and for other purposes," the Federal Trade Commission, on January 27, 1937, issued and s<>rved its complaint in this proceeding upon respondent lladdorff Piano Company, charging it 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 respondent's answer, the Commission, by order entered herein, granted respondent's motion for permission to withdraw said answer and to substitute therefor an answer admitting all the material allegations of the complaint to be true. and waiving the taking of further evidence and all other intervening procedure, which substitute answer was duly file.'d in the office of the Commission. Thereafter, this proceeding regularly came on for final hearing before the Commission on the said complaint and the substitute answer, briefs and oral arguments of counsel having been waived, and the Commission having duly consillerE.'d the same 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 THE FACTS P.\RAGR.\PII 1. Respondent IIaddorff Piano Company is a corporation existing and doing business under and by virtue of the laws of the State of Illinois. Its principal office and place of business are located at 1900 Harrison A venue, in the city of Rockfard, State of Illinois. For a number of years, r£>spondent has been engaged in the business of manufacturing pianos. It sells and distributes its pianos to retail dealers for re'iale.

PAR. 2. Respondent causes its pianos, when sold, to be transported from its office and principal place of business in the State of Illinois to the respective purchasers thereof located at various points in States of the United Stat('s other than the State of Illinois. Respondent. now maintains, and has for several years last past maintained, n. constant current of trade in the pianos manufactured, distributed and sold by it in commerce among and behwen the various States of the United States and in the District of Columbia. 28 FEDERAL TRADE COl\IMISSION DECISIONS Findings ~F.T.C.

PAR. 3. In the course and conduct of its business, respondent is now, and has been for many years, in substantial competition with other corporations and with firms and individuals likewise engaged in the business of distributing and selling pianos to retail dealers for resale in commerce among and between the various States of the United States and in the District of Columbia. PAR. 4. The respondent manufactures pianos of various types including pianos commonly designated as Grand pianos and also pianos commonly designated as Upright pianos. In addition to the pianos of the types above referred to, the respondent manufactures another type of piano which has been designated and described as "Vertichord Grand." Upon each of the pianos of this type, there has been imprinted upon the center of the front panel thereof the words "Haddod! Vertichord Grand."

In the course of the operation of its business, and for the purposes of inducing customers and prospective customers to purchase its pianos of this type, the respondent has caused advertisements to be inserted in periodicals and trade journals of general circulation throughout the United States. It has also printed and circulated throughout the several States, to its customers and prospective customers, pamphlets, folders, suggested sales talks, and other advertising literature. Some of the above mentioned literature is designed and intended to be used by the retailers in the offering for sale and sale of respondent's pianos to retail customers. In the advertisements and advertising literature above referred to, the respondent has caused its corporate name, IIaddorff Piano Company, to be prominently and conspicuously displayed, together with such statements as the following:

Cleverly designed to take much lest spnce than n grand nnd yet to maintain grand plano tone quality.

Tone ot a parlor grand.

It solves the problem of creating a plano that literally has the volume and tone ot a fine grand without taking up a grand's space. Iladdortr's Ingenious plano engineers have devised a way ot using longer strings In less space (and we can prove the paradox) thus giving full, rounded grand plano tone.

All the advantages ot a large grand plano.

It has the d<'ep mellow tone ot a large grand plano. In its suggested sales talks distributNl to retailers appear such statements as:

In con¥ersatlon there is a tendency to shorten this to just "Vertlchord." "Vertlchord" indicates "vertical strings" or "vertically strung," but that by Itself Is not n complete description ot the Instrument. It Is a horizontal plano, vertically strung.

HADDORFF PIANO CO. 29 22 Findings Vertichord Grund is therefore an accurate and proper name. Its constant use in full bus been proved to have a very favorable effect ln the promotion and sale of the instrument.

In pamphlets which it distributes to its retailer~ for distribution to members of the purchasing public in connection with the offering for sale and sale of its pianos appear such statements as: The name chosen for the new instrument, Vertichord Grand, ls descriptive of the new form. In its main muss and main effect the plano is horizontal (grand), but at that point in the structure of an ordinary grand where the curve in the rim begins, the strings are up-ended (which Is the significance of "Vertichord"). The result is a plano which combines the grace and decorative charm of the old spinl't, with the string ll'ngth, sounding board area, and general tonul character of a sizable grand of excellent quality, projects into the room only twenty-five and one-half Inches, and costs much less than llny other piano of the same style, appeal and a comparable musical quality. All of said statements, together with other similar statements not herein set out, purport to be descriptive of the type of pianos manufactured and distributed by the respondent under the name "Vertichord Grand." In all of said advertising literature, in the statements above set out, and in many other statements, the respondent represents, either directly or through implication, that the type of pianos referred to in said statements is the same as or is comparable to and has the same operating or mechanical features, tonal qualities, and other merits as the type of pianos generally known to and designated by the trade and public generally as Grand Pianos. PAn. 5. For a period of many years, one type of piano has been designated, described and known, both to the piano trade and to the purchasing public, as a Grand piano. Many users of pianos have expressed, and actually have, a preference for pianos of this type. Pianos of this type possess distinctive operating or mechanical features different from and in some cases superior to the operating or mechanical features of pianos of any other type. Among these features are: horizontal stringing, gravity action of hammers, placement of sounding board, and shifting soft pedal. In many pianos of the type generally designated and described as Grand pianos, there is also the additional feature of a true sostenuto pedal. The tonal qualities of pianos are determined to a large extent by the quality, character and placement of the sounding board, the size of the string plate and the length and number of strings. Some pianos of the type generally designated and known as Grand pianos, especially those of large or concert size, do have tonal qualities superior to the tonal qualities of any other type piano. When members of the purchasing public purchase pianos designated, described and referred to a.c: 30 FEDERAL TRADE COl\Il\IISSION DECISIONS Findings 25 F. T. C. Grand pianos, they expect to receive pianos possessing the operating or mechanical features above referred to.

PAR. 6. The pianos manufactured, distributed. and sold by the respondent in commerce as herein described and designated as "Vertichar<l Grand" pianos do not possess the same operating or mechanical features as are possessed by the type of pianos generally known and referred to as Grand pianos. The so-called "Vertichord Grand" pianos do not have a gravity action of hammers that strike the strings or chords. They do not have shifting soft pedals and do not have sostenuto pedals.

The sounding boards in respondent's "Vertichord Grand" pianos are not compurable in placement and tonal resonance to the sounding boards used in large or concert size Grand pianos. The size of the string plate and the length and number of strings in respondent's ''Vertichord. Grand" pianos are not comparable to those of the large or concert size Grand pianos. Consequently, the tm1al qualities of respondent's "Vertichord Grund" pianos are not comparable to those of the large or concert size Grand pianos.

Because of the reduction in the size of the sounding board and in the size of the string plate and the length and number of strings necessitated in Grand pianos of the smaller sizes often referred to as "Baby Grand" pianos, the tonal qualities of respondent's "Vertichord Grand" pianos are comparable to the tonal qualities of such pianos. PAn. 7. There are among respondent's competitors those who mannfacture and sell in commerce as herein set out pianos having many of the same mechanical features and tonal qualities ns respondent's "Vertichord Grand" pianos and having a similar general appearance to said pianos who do not, in any way, represent that their respective pianos have mechanical features and other qualities similar to Grand pianos and do not designate their respective pianos of this type as being Grand pianos. There are also among respondent's competitors those who manufacture pianos which do have the same mechanical features and other qualities possessed by the type of pianos hereinabove referred to as Grand pianos and who designate such pianos as Grand pianos.

PAn. 8. The respondent changed the name of its pianos of this type from "Vertichord Grand" pianos to "Vertichord'' on or about October 15, 1936. Since that time, it has not designated its pianos of this type as being Grand pianos. It has already eliminated from its advertisements and advertising literature similar to that described in paragraph 4 hereof any reference to pianos of this type as Grand ptanos.

HADDORFF PIANO CO. 31 22 Order PAn. 9. The acts a11<l practices of the respondent in using the aforesaid statements and representations in its advertising literature and in advertising literature furnished by it to retailers, in offering for sale and selling its "Vertichord Grand" pianos have had the tendency and capacity to mislead members of the purchasing public into the i'rroneous and mistaken belief that said pianos so designated possess the same operating or mechanical featnrrs as are present in pianos of the type generally known and designated as Grand pianos and into the purchase of respondent's so-called "Vertichord Grand" pianos on account of such belief. The acts and practices of the respondent as hereinabove set out also place in the hands of the retail dealers an instrument and a means whereby said retail dealers may misrepresent the operating or mechanical features and other qualities of said pianos and induce members of the purchasing public to buy said pianos on account of such misrepresentations. As a rrsnlt thereof, trade has been diverted to the respondent from competitors likewise engaged in the business of distributing and selling pianos who have not made use of like or similar statements and reprrsentations in the sale of their respective products in commerce among and bet\Yeen the various States of the United States. CO:KCLUSION The aforesaid acts and practices of the respondent Haddorff Piano Company are to the 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, 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 having been lward by the Federal Trade Commission upon the complaint of the Commission and the answer filed herein by tho respondent admitting all the l)laterial allegations of the camplaint to be true and wai,·ing the taking of further evidence and all other intervening procedure, and the Commission having m:ule its findings as to the facts and its conclusion that said respondent had violated the provisions of an Act of Congress apprond September 2G, 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 respondent, Iladdorff Piano Company, its <>officers, representatives, agents, and employees, in connection with the 1~8121m--30----~ FEDERAL TRADE COl\Il\IISSION DECISIOXS32 Ordt>r :!i:i F. T. C. offering for sale, sale and distribution of vertically strung pianos formerly designated as "Haddorff Vertiehord Grand" and now designated as "Hadclorff Vertichord'' in interstate commerce or in the District of Columbia, do forthwith cease and desist from: (1) The use of the word "Grand," alone or in conjunction with any other word or words, as a tralle name by which to designate or describe !thy piano not having its strings placed horizontally, gravity action of hammers, and shifting soft pedal, and not possessing those tonal and other qualities associated by the trade and the general public with Grand pianos;

(2) Heprcsenting that said pianos possess the same mechanical or operating features as are possessed by pianos of the type generally designate<.! and referreu to as Granu pianos; (3) Hepresenting that said pianos possess the same or comparable tonal qualities as pianos of the type generally designated and referred to as Gnmd Pianos, except as to the smaller sizes or Baby Grand pianos.

It is further ordered, That the respondent shall within 60 days after service upon it of this order, file with the Commission a report in writing setting forth in detail the manner and form in which it has complied with this order.

KOLY:KOS CO. 33 KOLYN"OS COMPANY CO:\II'LAINT, FINDINGS, AND Ordm IN Item.\Ild TO THE ALLEGED VIOL.\'hos Ol<' SEC. 5 0~<' AN ACT 0~' CO:'IIGRESS APPROVED SEPT, 26, 1014 Docl>ct 307!1• Compl.,inf, JJiar. 11, Jn.]"f-Deciaion, June 5, 1931 'Vlwre n t·orporation eugageu in ~alp Ullil distrillution of a tooti.Jpaste or dentifrice known us "Kolynos," in substantial competition with others engaged In ~ale 11ncl d!<;tribution of clcntifrkcl", and indwlir.g those who do not in any manner misrepresent the ingredients or efliracy of their respective products; in advet·thing it:; said "Kolyuus" in uew~vapers of getwml circulation- (a) Falsely n·vre:sented that It cOIHJUt'rt>!l m· remr•\"t·tl "flaeteri11l Mouth," cuu~P!l, ll>i asserted, by germs which'I sweep In with PYcry breath and attnrl• tooth nn<l gmn, and killed ~PrmR which wpre known can~e of most gum troubl~>s, anrl contained importaut gPrmlclrlal ingredients exceptional to it;

{b) Fulscly re1nes!'nted that it clt'UJJetl und pollslwu te<'lll tlown to the nuked wl1ite enHIIll'l without lujury nutl entst>tl tStain uud rurtar, uml ga,·e t<'eth n donble clcan~in~; that eoulu not be ohtahJecl with ordinary or other tooth}JilH!es or dentifrices, and contained "essential ingredients" which relllo\ e tm tnr, nne\ dPata·cl tf'eth down to tlw natnrnl white euanwl nnd gave the111 1-ilJal'kliug whitt•ness, fiji(! rPstoreu their natnrul whitenebs, BlHI made thnu look shades lighter almo:-;t at once, and gleam like pearls; a111J (c) l~Hl~ely r<'pic~'>l'lltC'tl that it did wlmt •>rdi~tury toothpu:-;le could not uo, and contained pt·opcrties not found in ordinary pastes and powders, and was ncw nnd totnlly dlfl'erellt, Anti was "the upproved" toothpaste and "the" antiseptic dental crcnm, and that tlC'ntlsts throughout the world rccomllll'lldcd it because of its ability to remove tartar; With result that a substantial nmnl.Jcr of tile consuming pul.J\ic•, as a consequence of its said false aml misleading representutiou~, llUrchn~cd sul.Jstnntlnl volume of its said prepnratlon and thereby unfairly diverted substantial volume of trade ancl business to It which would othPrwlse have gone to competitors who havl!not made usc of such unfair methods: Hdd, 'that sucll acts and practices were to the prejudice of the puhlic and competitors nnd constituted unfair methods of competition. i1Ir. lrm. T. Olwntland for the Commission. Co:'ltll.\lnf Purf>uant to tltf' pro\'isions of an Art of Congress, appro\·eJ September 2G, 1914. entitled "An Aet to create a Fedeml Trade Commission, to (kfine its powers and duties, nnd for other purposes," the Fetlernl Trade Commission, having reason to believe that the Kolynos C(m1pany, }Jereinnfter referred to as "respondent" has been, and is now, using unfair methods of competition in commerce as "commerce" is tlf'fim•tl in said act, and it appearing to the Commission that a Complaint 25 F.T.C. proceeding by it in respect thereof would Le in the public interest, hereby issues its complaint, stating its charges in that respect as follows:

PARAGRAPH 1. Respondent, Kolynos Company, is a Connecticut corporation, which has its principal office aml place of business in the city of New Haven, State of Connecticut. Respondent is now, and has been for some time, engaged in the business of distributing and selling, in commerce as herein set out, a certain tooth paste, known as ~'Kolynos."

PAn. 2. Said respondent, being engaged in business as aforesaid, causes said tooth paste, when sold, to be transported from its office and place of business in the State of Connecticut to purchasers thereof located at various points in States of the United States other than the State from which said shipments were made. Respondent now maintains a constant current of trade in commerce in said product, distributed and sold by it, between and among the various States of the United States and in the District of Columbia. PAn. 3. In the course and conduct of its said busine~s, respondent is now, and has Lren, in substantial competition with other corporations and with firms and individuals likewise engage1l in the business of distributing and selling tooth pastes and kindred preparations in commerce among and between the vnrions States of the United States and in the District of Columbia.

In the course and operation of said business, and for the purpose of inducing the purchase of said tooth paste, respondent has made use of advertisements carried in newspapers, magazines, and periodicals having a general circulation throughout the various States of the United States anu has also made use of other types of advertising generally circulated to purchasers and prospective pm·chaf:ers located in all of the States. In all of said advertisements, respondent ha:> caused its name to be prominently dil3played, together with such statements as the following:

Teeth whiten 3 shades In 3 days when you remove Dacterlal-Mouth. Within 3 days teeth will look whiter-tully 3 shades. Germs sweep Into the mouth wlth every breath and attock tooth and gum. They cause the condition known as Docterlal-l\louth but Kolynos quickly con• quers this toe • • •.

lt cl<'tms and polishes teeth down to the naked white enamel without Injury. Erases stain and tartur.

IWLYNOS GIVES TEETH A DOUBLE-CLEANSING YOU CAN'T GET WITil OllDINAllY TOOTH PASTE.

1. Foams Into every crevice, over every tooth surface and kills millions of germs.

2. Erases dingy film and stain. Detore you know It your teeth are cleaned right down to the beautiful, natural white enamel without Injury. KOLYNOS CO. 35 Complaint • • • Kolynos does what ordinary toothpastes can't do. As it cleans up ugly stain and tarnish-it foams into every credce and kills millions of germs: that are the known cause of most tooth and gum troubles. The dentist can stimulate the practice of oral hygiene in the home by ex- Illaining the relationship to the patient between mouth bacteria and tooth decay. The patient can aid in maintaining a healthy condition of the oral ca,·lty, usestablisl.Jt.>d by the dentist, through the use of KOLYNOS DE~TAL CREAM, which not only neutralizes the acid formed by mouth bacteria, but reduces the oral flora from 80% to 92% with each brushing. Just one brushing with Kolynos in the unique Kolynos way-a halt-inch or this amazing dental cream on a dry brush, use no water-and you'll see how important it is to use an antiseptic dental cream that kills germs always collecting on the teeth and disfiguring them.

IT'S EASY TO MAKE DULL, DINGY TEETH ATTRACTIVE. GIVE THEM SPARKLING WHITENESS ! New-and totally diflerent-wny or antist.>ptic cleaning transforms dull teeth in a hurry. • • • 'this modern antiseptic dental crelllll contains properties not found in ordinary pastes ami powders. It instantly kills 80% to 92% of the germs present in the mouth. Hemoves the ugly germ-spots, the stain and discoloration. Cleans every tooth surface, betwf'en the teeth, every tiny crevice. And giv<>s to teeth a clear· nf'ss and brllllnncc that is wonderful to see. Now discowr what more than 2,000,000 Americans already know. Start cleaning your teeth with antiseptic Kolynos.

Your teeth look shades lighter; they gleam like pearls. • • • Makes them look shades lighter almost at once. • • • Actually kills harmful germs in a few seconds and keeps teeth and mouth thoroughly clean and healthy, Impot·tant ingredients exceptional to KOLYNOS actually kill the germs of dcntul decay in n few seconds.

The npprorcd antiseptic and germicidal tooth paste. • • * KOLYNOS Dental Crcnm * • • deJStroys from 80 to 90o/o of oral bacteria with each brushing • • • KOLY:-.108, til<> Ant!sCiltic Dental Cream. D('ntists throughout the world recolllmend KOLYNOS because of its ab!llty to remove unsightly stain and tartur.

Other essential ingt·ellil'nts remove unsightly stain and dissolve tartar. Its action is exactly like that of a jeweler's polish on tarnished silver. It erast>s the yellowish colored coating that disfigures your teeth and restores their natural whitene>'s.

All of said statements, together with many other statements appearing in respondent's advertising literature, purport to be descriptive of respondent's product and its effectiveness in use. In all of its advertising literature, respondent represents, through the statements and rrpn•sentations hereinabo\·e !:llt out aud other statements of similar import and elfect that its tooth paste erases or removes stain and tartar; that it will whiten teeth several shades in a few days; that it cleans teeth down to the white enamel without injury; that it almost instantly kills millions of germs which cause most tooth and gum 36 .FEDERAL TRADE COl\DIISSION DECISIONS Compl11int 2:-iF.T.C. troubles; that it keeps the teeth and mouth thoroughly clean and healthy on account of its germicidal and antiseptic properties; that it gives dull, dingy teeth sparkling whiteness; that said tooth paste will remove or conquer bacterial month; and that it accomplishes results which other tooth pastes cannot accomplish. PAR. 4. The representations made by the respondent, as above set out, with respect to the effect, when used, of its said product, are grossly exaggerated, false, misleading and untrue. The truth and facts are that said tooth paste does not have any of the qualities, nor achieve any of the results thus represc>nted and claimed<l. Hespowlent's tooth paste will not erase or remove all stain and tartar and it \Vill not, in all cases, clean teeth to the natural white enamel without injury. It dors not almost instantly kill millions of germs \which are the cause of most tooth and gum troubles anJ it docs not keep teeth and mouth thoroughly clean and healthy on :weo1mt of germicidal and antiseptic properties or on any othrr acc01mt. Its use <loe-> not l'<'!Hler all dull and dingy teeth sparkling \vhite. Hesponclent's tooth paste does not accomplish rrsults that cannot he accompllsh«>d by nse of other tooth pastes.

r.\R. 5. There are among respondent's competitors many who distribute and sell tooth pastes or dentifrices, or similar prrparations, who do not in any way misrepresent the effectiveness of their respective products.

PAn. 6. Each and all of the false and misleading statements and representations made by the respondent as to the effectiveness of its said product, as hereinabove set out, in its advertising, in the course of distributing its products, were and are calculated to, and had, and now have a tendency and capacity to mislead and deceive a substantial portion of the purchasing public into the erroneous bt>lief that all of said representations are true, and that the results claimed by the re:,pondeut will be obtained by the purchasers thereof upon the use of said products. Further, as a true consequence of the mistaken and erroneous beliefs induced by the acts, advertisements and representations of respondent, as hereinabove set out, a substantial number of the consuming public has purchased a snb~tantial volume of respondent's product with the result that trade has been unfairly diverted to the respondent from individuals, firms, and corporations likewise engaged in the business of distributing anu sellinrr similar products, who truthfully advertise their respective products :nd their respective effectiveness in use. As a result thereof, substantial injury has been and is now being done by respondent to competition in commerce among and between the various States of the United States and in the District of Columbia.

KOLYNOS CO. 37 l<'iudings PAR. 7. The above and foregoing acts, practices and representations of the respondent have been, and are, all to the prejudice of the public and of respondent's 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, approved September 26, 1914, entitled "An Act to create a Federal Trade Commission, to define its powers and duties, and for other purposes." Rr.roiiT, FINDINGS AS TO THE FACTs, AND Onder 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 the 11th day of March 1037, issued and served its complaint in this proceeding upon said respondt•nt, Kolynos Company, charging it with the use of unfair methods of competition in commerce in violation of the provisions of said act. Thereafter on l\Iay 19, 1037, a stipulation was entered into whereby it was stipulated and agreed that a stn.tement of facts signed and executed by the respondent anu ,V. T. Kelley, Chief Counsel for the Federal Trade Commission, subject to the approval of the Commission, may be taken as the facts in this proceeding and in lieu of testimony in support of the charges statetl in the complaint, or in opposition thereto, anti that the said Commission may proceed upon said statement of facts to make its report, stating its findings as to the facts and its conclusion based thereon and enter its order disposing of the proceeding without the presentation of argument or the filing of briefs. Thereafter this proceeding regularly came on for final hearing before the Commission on said complaint and stipulation, said stipulation having been approved and accepted, alll the Commission having duly considered the same and being now fully ad risPd in the premises, finds that this proceeding is in the interest of the public and makes its finding as to the facts and its conclusion drawn therefrom:

FfNDlNGS AS W Tile FACTS PAnAGRAl'H 1. Respondent Kolynos Company is a corporation duly organized and existing under the laws of the State of Connecticut, with its office and principal place of business in the city of New Haven, Conn. Respondent is now and for some time has been engaged in the business of selling and distributing in interstate comnwrce n tooth paste or dentifrice known as "Kolynos." PArr. 2. Respondent, being engaged in business as nforesaid, causes faid preparation, when sold, to be transported from its place of busi- 38 FEDERAL TRADE COl\11\IISSION DECISIONS Findings 25F.T. C.

ness in the State of Connecticut to the purchasers thereof located at various points in States of the United States other than the State from which shipments are made. Respondent now maintains a constant current of trade in commerce in said product distributed and sold by it between and among the various States of the United States.

PAR. 3. Respondent is now and has been, in the course and conduct of its said business, in substantial competition with other corporations and with firms and individuals likewise engaged in the business of distributing and selling tooth pastes or dentifrices in commerce among and between the various States of the United States. PAR. 4. Respondent, in the course and conduct o'f its business in said commerce, for the purpose of inducing the purchase of its said product, Kolynos tooth paste, caused advertisements to be placed in newspapers having a general circulation in the various States of the United States and in the District of Columbia. These advertisements contained statements concerning the i11gredients in and the efficacy of the product, Kolynos tooth paste, in the care, preservation, nnd treatment of the teeth and gums.

Prior to October 2, 1033, nt which time respondent executed a stipulation with the Commission wherein it agreed to discontinue certain practices, the following statements were made in said advertisements:

Teeth whiten 3 shndes in 3 duys when you remove nactcrlnl-1\Iouth. Within 3 days teeth wlll loolt whiter-fully 3 shndes. Germs sweep into the mouth with every brenth nnu nttnck tooth RI1d gum. Th<'Y enuse the condition known ns Bncterial-Mouth but Kolynos qulcldy conquers this foe • • •.

It dmns nnu poll:o;hes teeth down to the nnk<'ll white enamel without Injury. Ernses stnln nnd tnrtnr.

None of the statements above set out have be-en so used since the date of the execution of said stipulation, except for such of said statements as were in outstanding advertising copy on that date, and none have Lcen used at all since January 1, 1034, except a statement which was inadvertently included in certain advertisenwnts placeu in newspapers circulated. in the State of Alabama, to the effect that the product, Kolynos tooth paste, would. remove tartar from the teeth. Upon discovery of the inclusion of such statement in said advertisements, the respondent, by letter datetl February 10, 1037, and prior to the issuance of the complaint herein, ordered said statement removed from such advertisements.

Paint. 5. SuLscquent to January 1, 1034, and up to date of the issuanee of the complaint herein, l\Iarch 11, 1037, respondent in said KOLYNOS CO. 39 Findings lll:'wspaper advertisements made in substance the following statements conceming the pfficacy of the product, Kolynos tooth paste, in the care, preservation, and treatment of the teeth and gums: that "Kolynos giws teeth a double-cleansing you can't get with ordinary tooth paste"; that "Kolynos 1loes what oruinary tooth pastes can't (lo"; that "This modern nntisPptic dental cream contains properties not found in ordinary pastes and powders"; that by the use of Kolynos teeth are cleaned down to the naturn.l "white" enamel; that the use of Kolynos gives teeth "sparkling whiteness"; that its use restores to teeth "their natural whiteness"; that Kolynos kills germs that are the known cause of "most gum troubles"; that "Kolynos is new-and totally different"; that using Kolynos makes "your teeth look shades lighter," "gleam like pearls" and "look shades lighter almost at once"; that Kolynos contains important ingredients, "exceptional to Kolynos," which kill germs; that Kolynos is "the approved" tooth paste and is "the" antiseptic dental cream and that dentists "throughout the world recommend Kolynos because of its ability to remove • • tartar," and that other "essential ingredients" found in Kolynos remove tartar.

PAn. 6. The use of Kolynos tooth paste will not whiten teeth "3 shades within 3 days." Kolynos does not "conquer the conuition known as bacterial-mouth caused by germs which swet>p into lhe mouth with every breath and attack tooth and gum." It does not "cl£'nn and polish teeth down to the nakeu white enamel without injury." It docs not "eruse or remove tartar"; nor does it "erase or !'£'move stains" other than snpC'rficial stains. It does not give teeth n "double cleansing'' not obtainable from ordinary tooth paste. Its use does not give teeth which are naturally discolored "sparkling whiteness" nor "restores" to such teeth their natural whiteness. It <lo£'S not kill germs that are "the known cause of most gum trouble." Kolynos is not "new" nor is it "totally" different from other tooth pastes. Its use will not make teeth "look shades lighter almost at once" nor will it make teeth "gleam like pearls." It does not contain important ingredients "exceptional to Kolynos" which kill germs. It is not "the apprond" tooth paste or "the" antiseptic dental cream in the sense that it has been approvf'd or r£'commended by dentists or the purchasing public to the exclusion of other tooth pastes. PAn. 7. Among the competitors of the respondent above nwntioned are many who do not in any manner misrrpresC'nt the ingredients in or the efficacy of their products in selling and distributing the same in said commerce and as a result of respondent's fiaid false and misleading representations a substantial number of the consuming pnhlic has purchased a substantial volume of respond- Order 25F.T.C.

ent's preparations and so unfairly diverted a substantial volume of trade and business to respondent which would otherwise have gone to competitors who have not used such unfair methods. CONCLUSION The aforesaid acts and practices of the responde>nt, Kolynos Company, are to the prejudice o£ the public and o£ respondents' comp<'titors, and constitute unfair methods of competition in commerce, within the intent and meaning of Section 5 of an Act of Congress, apprond SE>ptember 2G, 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 having been heard by the Federal Trade Commission upon the complaint of the Commission and the stipulation as to the facts filed herein on May 19, Hl37, whereby respondent admits all the material allegations of the complaint to be true, and waives all other intervening procedure, and the Commission 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 2G, 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 rpspondent, Kolynos Company, its officers, representatives, agents and employees, in connection with the offering for sale, sale, and distribution of Kolynos toothpaste in inter. state commerce or in the District of Columbia, do forthwith cease and desist from directly or indirectly representing: 1. That Kolynos toothpaste conquers or removes bacterial mouth allegedly caused by germs which s\\:eE:'p into the mouth with every breath, and attack tooth and gum.

2. That Kolynos toothpaste kills germs that are allegedly the cause of most gum troubles, or that it contains ingredients exceptional to Kolynos that kill germs.

3. That Kolynos toothpaste cleans and. polishes teeth down to the naked white enamel without injury.

4. That Kolynos toothpaste erases and removes tartar, or erases and remons stains other than superficial stains. 5. That Kolynos ~oothpaste re~stores all teeth to sparkling whiteness, or natural whiteness, or makes teeth shades lighter almost at once, or makes teeth gleam like pearls.

6. That Kolynos toothpaste gives teeth a double-cleansin(l' that can't be obtained with ordinary or other toothpastes or dentifri~s. KOLYNOS CO. 41 33 Order 7. That Kolynos toothpaste does for the teeth and gums what ordi. nary or other toothpastes or dentifrices cannot do. 8. That Kolynos toothpaste is ne,v, or totally different from other toothpastes or dentifrices.

9. That Kolynos toothpaste is "the approval" toothpaste or "the'' antiseptic dental cream, in the sense of having been approved or recommended by dentists or the purchasing public to the exclusion of other toothpastes and dentifrices;

or from making any other representations of similar meaning, import and effect.

It is further ordered, That the respondent shall, within CO days after service upon it of this order, file with the Commission a report in writing setting forth in detail the manner and form in which it has complied with this order.

42 FEDERAL TRADE CO:MMISSION DECISIONS Syllabus 25F.T.C.