Joseph Cominsky

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WAVERLEY TAILORS, ETC. 777 IN TH~ l\IArnm OF JOSEPH COl\1I.NSKY, TRADING AS 'VA VERLEY TAILORS, :MAYFAIR CLOTHING 001\IP ANY, AND BAHCLA Y CLOTHING 001\IP ANY COMPLAINT, FINDINGS, AND ORDER IN IlEGARD TO THE ALLEGED VIOLATION OF SEC. 5 OF AN ACT OF CONGRESS APPROVED SEPT. 26, 1914 Docket 8193. Complaint, Aug. 3, 1937-Decision, Feb. 17, 1938 'Vhere an ill(livi<lual engaged, unuer trade Illlme including word "Tailors" and other names, in offer and sale of ready-made suits, overcoats, and topcoats for nwn, through traveling salesmen and agents, to purchasers in various other States, in substantial competition with others engaged in sale and distribution of such ready-made articles in interstate commerce, including many selling their clothing through salesmen or agents and who have not adopted nels, practices, aml methods as below set forth, aud Including (1) many who, as manufacturers of such garments, rightly repres('nt themselves as such, (2) others who, as purchasers of such products dealt in by them. tlo not represent that they manufacture same, and (3) many who rightfully represent their said suits, overcoat~, and topcoats for men as tailored acconling to the individual m('asurements of the purchaser from material of the 1·color, weave, grade, quality, and texture selected from ~;:amples displayed, 1U1d ( 4) many who ;;ell such garments made in stock sizes and do not represent same as made to purchaser·s individual measurements- ( a) Represented, through his said agents and representatives and otherwise, that orders solicited and received, as aforesaid, were forwarded to him at his principal 11luce of business In New York City, and that said place of bmdness wns a tuiloring establishment, facts being he was not a tailor or mnunf11durer of clothing, and none of his said ready-made suits, over- PO!Its, and topcoats were made by him, but were manufactured by others> (b) RevresPnted, as aforesaid, through order blanks supplied his said agents with this trade name thereon and directions for taking measurements r~garded, usually, as esseutial to tailoring of suit, overcoat, or topcoat to customer's individual measure, and through the display of such blanks and the taking of such measurements, and through statements and conduct of his Sllid agents, that the ready-made garments, sale of which was being thus solicited, were tailored to individual measurements of purchaser, and made use of such expressions as "Tailored-to-Fit," "Made-to-Measure," and "Custom-Made," facts being the particular garments involved had been previously manufactured without regard to individual measurements of· purchaser to whom eventunlly sold, and were "ready-made,'~ and were not tailored to fit, made to measure, custom made, or made to order, as represented, but, as aforesaid, were the ready-made variety or stock type, and altered, when deemed necessary, to conform partially to measurements. shown on order blanks; and (c) Represented find implied, as aforesaid, to prospective purchasers that he· would make for and deliver to them made-to-measure or tailor-made garments from mat('rial of the color, weave, quality, and texture selected by purchasers f1·om samples exhibited by said salesmen or agents, facts being FEDERAL TRADE CO)DliSSION DECISIONS 778 Complaint 2Gl<'.T.C. suits and other garments sent to customers, in many instances, were not made from mater·ials corresponding to Sflmples as displayed to them by his said sales agents and representativl's, and selectf'd by the purchaser, but, in many instances, were furnished in materials substantially inferior in quality, grade, and texture to that of sample displayed and selected; 'With capacity and tendency to mi~>lend all(l deceive pm·cbasei'S and pt·o~<rlective purehasers into mistaken and erroneous beliefs that said individual was a manufacturer of men's clothing, garment orrlerf'il would be made to indi· vidual measurements of purchaser and tailored to fit, made to measure, custom made, or made to order, as understood by public, and, ns ordered, would be made from material, color, weave, grade, quality, and texture selected bY purchaser from samples exhibited by salesmen or agent, and into purchase of his said suits, overcoats, and topcoats in and on account of such belief.!, and with result, as a consequence thereof, that substantial ti·ade in inter· state commerce was unfairly diverted to him from COIIIJietitors who do uot use similar acts and practices in connection with the sale of their said prod· ucts; to their injury and that of the public: Held, That such acts and practices were to the prejudice of the public Rlltl com· petitors and constituted unfair methods of compf'titlon. Defore Mr. John lV. Addison, trial examinet'. llfr. Joseph 0. Fehr for the Commission.

JJ!r. Benjamin F. Steinberg, of New York City, for respondent. Co:tVIPLAINT Pursuant to the provisions of an Act of Congress, appro\·ed 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 Joseph Cominsky, an individual doing business under the trade names 1Vaverley Tailors, Mayfair Clothing Company, and Barclay Clothing Company, hereinafter referred to as respondent, has been a_nd is using unfair methods of competition in commerce as "commerce" is defined in said Act, and it appearing to said Commission that a proceeding by it in respect thereof would be in the public interest, hereby issues its complaint, stating its charges in that respect, as follows: PARAGRAPH 1. Respondent, Joseph Cominsky, is an individual, hav· ing his principal office and place of business located at 678 Broadway, in the city of New York, in the State of New York. Respondent, for more than 2 years last past, has been, and still is, engaged in the busi· ness of selling men's ready-made suits, overcoats, and topcoats, and in offering said articles of men's clothing for sale and selling the same in commerce between the State of New York and the several States of the United States, and in the District of Columbia. 1Vhen said arti· des of clothing are sold, respondent transports, or causes the same to be transported, from his place of business in the State of New York WAVERLEY TAILORS, ETC. 779 777 Complaint to the purchasers thereof, IocatNl in States of the United States other than the State of New York, and in the District of Columbia. There has been for more than 2 years last past, and still is, a constant curre~t of trade and commerce in said articles of clothing thus sold and distributed Ly respondent, between and among the various States of the United States, a11d in the District of Columbia. Respondent is now, a.nd for more than 2 years last past has been, in substantial competitjon with other individuals and with partnerships, corporations, and firms engaged in the nw.Jlufacture, or in the sale and distribution, of like anrl similar articles of meu's clothing in commerce between and among the Yarious States of thp United States, and in the District of ,. Columbia. t P:.n. 2. In the courso aml conduct of his business, as aforesn,id, the respondent, by and through sales agents and representatives, sells and i. has sold mPn's ready-made snits, overcoats, and topcoats directly to the Persons by whom such snits, overcoats, and topcoats are to be worn. Respondent furnishes and has furnished to his sales agents and representatin's order blanks, bearing one of his trade names, which set forth di~eetions for taking measm·pments usually regarded as essential to the tailoring of a !:mit, overcoat, or topcoat to the individual measure of a custonwr. Snrh sales agents and representatives, by displaying such 0 l'dPt' blanks to eu:;tomers and prospective customers, and by taking the measurements specified thereby, and by their statements aud conduct, represpnt and have represented to such customers and prospective customers that the men's ready-made suits, owrcoats, and topcoats sold by l'E:'spondent are tailored to the individual measurements of the purchasers thereof. Respondent also, through said sales agents and representatives and otherwise, represents to his customers and prospective customers, that the men's ready-made suits, overcoats, and topcoats sold and offered for sale by him are "Tailored-to-Fit," "l\Iade to Measure," and '·Custom-Made." Further, respondent represents, through said sales agents and representatives and otherwise, that orders so solicited, and receh·ed are fonvardecl to said respondent at his principal pla~e of business, in the city of New York, State of New York, which said l~lace of business respondent and his said sales agents and re.presentahves represent to be a t(tiloring establishment. J{pspondent further repi·esents that said orders, when received by him, are filled according to said mPnsurements, and of a cloth \Yhose grade and texture is representetl to he the same as the samples displayed by said sales agents and I't'fll'e•.pJJt a tin's and as selected by the customer . . PAn. 3. The statements and representations o£ respondent set forth In paragmph 2 hl'l'Pof, nnd others similar thereto, have the capacity Complaint 26F.T. Or and tendency to deceive purchasers and prospective purchasers of respondent's said articles of clothing into the false and erroneous beliefs:

(a) That respondent is a tailor or manufacturer; (b) That the men's ready-made suits, overcoats, and topcoats sold and distributed by respondent are "Tailored-to-Fit," "Made to Measure," "Custom-Made," or "Made to Order";

(c) That said men's ready-made suits, overcoats, and topcoats are made in accordance with measurements submitted by said sales agents and representatives, and of a cloth whose grade and textureis the same as the samples displayed by such sales agents and rl:'presentatives and as selpcted by said cutomers. PAR. 4. In truth and in fact, respondent, trading under the various trade names hereinabove set forth, is not a tailor or manufacturer of clothing. None of the men's ready-made suits, overcoats, and topcoats sold by respondent are made by respondent, but they are made by other manufacturers. The said men's suits, overcoats, and topcoats sold and distributed by him were and are not "Tailored to Fit," "Made to Measure," "Custom Made," or "Made to Order," as represented, but were and are of the ready-made variety or stock type, and are altered, when deemed necessary, to partially conform to the measurements shown on the order blanks. Further, in many instances, the men's suits, overcoats, and topcoats sent to customers did not and do not correspond to the samples displayed to said customers by said sales agents and representatives, and as selected by said customers. Nor are said men's suits, overcoats, and topcoats made in accordance with measurements submitted by respondent's said sales agents and representatives, or of a cloth whose grade and texture is the same as that of the samples displayed by said respondent's sales agents and representatives, and as selected by the customers. In many instances, said garments are furnished in materials substantially inferior in quality, grade, and texture to that of the sample. displayed and selected by the purchasers. P .AR. 5. There are, among the competitors of respondent referred to in paragraph 1 hereof, many who manufacture the men's suits, overcoats, and topcoats which they sell, and who rightfully represent that they are the manufacturers thereof. There are others of said competitors who purchase the men's suits, overcoats, and topcoats in which they deal, and which they resell, who do not represent that they manufacture said men's suits, overcoats, and topcoats. There are also, among said competitors, many who rightfully represent that the men's suits, overcoats, and topcoats which they sell are tailored according to the individual measurements of the pur- II WAVERLEY TAILORS, ETO. 781 777 Findings chasers thereof, of a cloth whose grade and texture is the same as· that of the samples displayed by- them and by their sales agents and representatives; and others of said competitors who sell men's: suits, owrcoats, and topcoats made in stock sizes, and who do not represent that the men's suits, overcoats, and topcoats sold by them are made to the individual measurements of the purchasers. PAR. 6. The above alleged acts and practices of respondent have the capacity and tendency to mislead and deceive purchasers and prospective purchasers into the erroneous beliefs described in paragraph 3 hereof, and. into the purchase of respondent's said suits,. overcoats, and topcoats in and on account of such beliefs. Thereby trade is unfairly diverted to respondent from those competitors i: referrt>d to in paragraph 5 as herein described. As n. consequence thereof, substantial injury is clone by respondent to competition in commerce among and between the various States of the United States, and in the District of Columbia.

PAR. 7. Said acts and practices of respondent are all to the prejudice of the public aml of respondent's competitors, and constitute Unfair methods of competition in commerce within the intent and »leaning of Section 5 of an Act of Congress entitled "An Act tocreate a Federal Trade Commission, to define its powers and duties,. fltltl for other purposes," approved September 26, 1914. ., J ~ • REPORT, FINOINGS 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 August 3, 1937, issue<l, and, on August 4, 1937, ~eryed its complaint in this proceeding upon respondent Joseph Comlnsky, trading as 'Vaverley Tailors, Mayfair Clothing Company, and Barclay Clothing Company, charging him with the use of unfair n1ethods of competition in commerce in violation of the provisions of said act. After the issuance of said complaint, the Commission by order duly entered herein extended the respondent's time for filing answer to January 22, 1938, on which date the respondent filed an answer to the complaint wherein he admitted all of the material allegations of the complaint to be true and stated that the Commis- ~ion might, without further evidence or other intervening procedure, issue and serve upon him findings as to the facts and conclusion and an order to cease and desist from the violations of law charged in the complaint, which said answer was duly filed in the office of the- Commission. Thereafter, this proceeding regularly came on for final 160451m--so~vol.26----52 COl\1:\IISSIO~ DECISIO~S782 l<'EDERAL TRADE Finding~ 2G F. T. C. hearing before the Commission on the said complaint and the answer thereto, and the Commission having duly considered the same, and being now fully advised in the premises, finds that this procPecling is in the interest of the public and makes this its findings as t.o the facts and its conclusion drawn therefrom:

}'INDINGS AS TO THE :facts PARAGUAl'H 1. Respondent Joseph Cominsky is an imlivitlual engaged in the business of offering for sale., and selling, rE>ady-made suits, overcoats, and topcoats for men, through salesmen or agents who travel throughout the United States soliciting and accepting orders for such clothing. His office aml principal place of busines is located at 678 Broadway, New York, N. Y. Respondent has been trading and doing business under the names Waverley Tailors, Mayfair Clothing Company, and Barclay Clothing Company. Respondent in the usual course of such business has constantly engaged in interstate commerce, selling and shipping such clothing from l1is place of busine!is in New York, N. Y., to purchasers JoeatNl in various other States of the United States. In the operation of his business as aforesaid, respondent comes into substantial competition with others e!lguged in selling and distributing ready-made suits, overcoats, and topcoat::; for men, in interstate commerce. Among such competitors are many who like"·ise sell such clothing through salesmen or agents, and who have not adopted the acts, practices, and methods in the sale thereof used by the respondent in the sale of his clothing as hereinafter described. PAR. 2. In the course and conduct of his business, as aforesaid, the respondent, by and through sales agents and representatiws, sells ready-made suits, overcoats, and topcoats for men directly to the persons by whom such suits, overcoats, and topcoats are to be worn. Respondent furnishes to his sales agents and representatives order blanks, bearing one of his trade names, which set forth directions for taking measurements usually regarded as essential to the tailoring of a suit, overcoat, or topcoat to the individual measure of a customer. Such sales agents and representatives, by displaying such order blanks to customers and prospective customers, and by taking the measurements specified thereby, and by their statements and conduct, represent to such customers and prospectiye cnstonwrs thrrt the ready-made suits, overcoats, and topcoats for men sold by respondent are tailored to the individual measurements of the pnr· chaser thereof. Respondent also, through said sales a~ents nml representatives and otherwise, represents to his customers and prospective customers, that the ready-made snits, owrcoats, and topcoats I!I I' I WAVERLEY TAILORS, ETC. 783 777 Findings for men sold and offered for sale by him are "Tailored-to-Fit," "Madeto-1\leasure," and "Custom-Made," and implies to prospective purchasers of his clothing that he will make for, and deliver to, purchasers of his clothing made-to-measure or tailor-made garments made from material of the color, weave, quality, aml texture selected by purchasers from the samples exhibited by his salesmen or agents. In many instances, the garments delivered by the respondent to purchasers are not made-to-measure or tailor-made garments, as that term is understood by the purchasing public, but are "ready-made" or "hand-me-down" garments, having been previously manufactured without regard to the inclh·idual measurements of the purchaser to whom the garment is eventually sold.

Hespomlent 1·represents, through said sales agents and representatives and otherwise, that orders so solicited and received are forwarded to the respondent at his principal place of business in the city of Ne,v York, which said plate of business respondent and his sales agents and representatives represent to be a tailoring establi~hment. nespondent further represents that said orders when received by him are filled by making a garment according to the individual measurelllent of the purchaser from a material of the color, weave, grade, quality, and t<'xture selected by the purchaser from samples exhibited by said agents and representatives.

PAR. 3. The statements and representations of respondent set forth in paragraph 2 hereof, and others similar thereto, have the capacity and. tendency to deceive purchasers and prospective purchasers of respondent's said articles of clothing into the mistaken and erroneous belief that the respondent is a manufacturer of men's clothing; that the garment ordered will be made to the individual measurement of the purchaser; that such garment will be "Tailored-to-Fit," "Madeto-Measure," "Custom-Made," or "Made-to-Order" as those terms are Understood by the public; and that the garment ordered will be made from material of the color, weave, grade, quality, and texture selected by the purchaser from samples exhibited by salesmen or agents of the respondent.

PAR. 4. In truth and in fact, respondent, trading under the various trade names hereinabove set forth, is not a tailor or manufacturer of clothing. None of the ready-made suits, overcoats, and topcoats for men sold by respondent are made by respondent, but they are lnade by other manufacturers. The said suits, overcoats, and top· coats for men sold and distributed by him were and are not "Tailored- I ·' to-Fit," "Made-to-Measure," "Custom-Made," or "Made-to-Order," as represented, but were and are of the ready-made variety or stock type, and are altered, when deemed necessary, to partially conform to the 1,:

Conclusion 26F. T. 0.

measurements shown on the order blanks. Ill many instances, the suits, overcoats, and topcoats for men sent to customers are not made from materials corresponding to the samples displayed to said customers by said sales agents and representatives, and as selected by said purchasers. Nor are said suits, overcoats, and topcoats for men made in accordance with individual measurements of the purchasers submitted by respondent's said sales agents and representatives. In many instances, said garments are furnished in materials substantially inferior in quality, grade, and texture to that of the sample displayed and selected by the purchasers.

PAR. 5. There are, among the competitors of respondent referred to in paragraph 1 hereof, many who manufacture suits, overcoats, and topcoats for men which they sell, and who rightfully represent that they are the manufacturers thereof. There are others of said com~ petitors who purchase suits, overcoats, and topcoats for men in which they deal, and which they resell, who do not represent that they manufacture said suits, owrcoats, and topcoats for men. There are also, among said competitors, many who rightfully represent. that the suits, overcoats, ami topcoats for men which they sell are tailored according to the individual measurements of the purchasers thereof from material of the color, weave, gralle, quality, and texture selected by purchasers from samples displayeu; among said competitors are many who sell suits, overcoats, and topcoats for men made in stock sizes, and who do not represent that the suits, overcoats, and topcoats for men sold by them are made to the individual measurements of the purchasers.

PAR. 6. The above alleged acts and practices of respondent have the capacity and tendency to mislead anu deceive purchasers and prospective purchasers into the mistaken and erroneous beliefs described in paragraph 3 hereof, and into the purchase of respondent's said suits, overcoats, and topcoats for men in and on account of such beliefs. As a consequence thereof, substantial trade in interstate commerce is unfairly diverted to the respondent from his competitors who do not use similar acts and practices in connection with the sale of their said products in said commerce, to the injury of such competitors and the public.

CONCLUSION The aforesaid acts and practices of the respondent Joseph Cominsky, trading as 'Vaverley Tailors, Mayfair Clothing Company, and Barclay Clothing Company, are to the prejudice of the public and of re~ spondent's competitors, and constitute unfair methods of competition in commerce, within the intent and meaning of Section 5 of an Act WAVERLEY TAILORS, ETC. 785 177 Order 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."

OUDER TO CEASE AND DESIST This proceeding having been heard by the Federal Trade Com- Inission upon the complaint of the Commission and the answer filed herein on January 22, 1938, by respondent, admitting all the material allegations of the complaint to be true, and waiving the taking of further evidence and 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 26, 1914, entitled, "An Act to create a Federal Trade Commission, to define its powers and duties, and for Qther purposes."

It is ordered, That the respondent Joseph Cominsky, an individual trading as '\Vaverley Tailors, Mayfair Clothing Company, and Barclay Clothing Company, or under any other name or style, his representatives, agents, and employees, in connection with the offering for sale, sale, and distribution of ready-made suits, overcoats and topcoats for men in interstate commerce and in the District of Columbia; do forthwith cease and desist from directly or indirectly representing: 1. That respondent manufactures the suits, overcoats and topcoats sold and distributed until he actually owus and operates, or directly and absolutely controls, the tailoring establishment, factory, or plant wherein such clothing is made;

2. That the ready-made suits, overcoats and topcoats sold by him .I are tailored-to-fit, made-to-measure, custom-made, or made-to-order, unless and until his said garments are actually cut and made to the individual measurements of the purchasers;

3. That the garments sold by respondent will be made from the material selected by the purchasers from samples submitted by his &alesmen or agents, unless and until the garments sold by him are made from materials of the color, weave, quality, and texture selected by such purchasers.

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

FEDERAL TRADE CO::O.Il\IISSION DECISIONS786 Syllabus 26 F. '1'. <J.