Fioret Sales Company, Inc., and Murray W. Morin and Irving Unterman, Individually and as Officers of Fioret Sales Company, Inc.

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IN THE J.IATTER OF FlORET SALES COMPANY, INC., AND MURRAY ·w. MORIN AND IRVING UNTERMAN, INDIVIDUALLY AND AS OF· FICERS OF FlORET SALES COMPANY, INC.

COMPLAINT, FINDINGS, AND ORDER IN REGARD TO THE ALLEGED VIOLATION OF SEC. 1i OF AN ACT OF CONGRESS APPROVED SEPT. 26, 1914 Docket 3164. Complaint, June 29, 1937-Decision, Feb. 19, 1938 Where a corporation engaged in sale and distribution of toilet water and per· fumes, compounded in the United States through blending with alcohol vehicle, perfume concentrate, imported as such, or made, by company from which it purchased, from the essential oil or flower essence, aromatic chemicals, and animal products Imported by such company- Represented that its said products were made or compounded ln France or imported, through use, on labels attached to containers and cartons of its products, of such words, phrases, and legends as "Les Parfums des Jardine de Fioret, Paris, New York," "le Parfum. et !'ensemble de sa presentation ont ete crees en France par Les Parfums des Jardine de FlORET a Paris. ns sont la propriete exclusive de FlORET, INO., pour les Etats Unl:S: de 'Amerique ou ils sont completes coUTEs CONTREFACONB seront rigoureuse· ment poursulvies. FlORET, INC., New York. Paris BOTrLED IN u. s. A.," notwithstanding fact lts said perfumes, purchased by it as above set forth. were, as aforesaid, actually compounded in the United States and were not products made or compounded in France, or in any other foreign country, or imported;

With effect of misleading and deceiving a substantial part of purchasing public into erroneous and mistaken belief that said representations were true, and that perfumes in question were imported into United States from Paris, France, and with reg~Jlt that public, acting under mistaken and erroneous beliefs induced by such false, deceptive, and misleading statements and representations, purchased substantial volume of its said products as and for the preferred imported, and particularly preferred French, perfumes, and trade was unfairly diverted to it from competitors engaged in manu· facture and distribution, or in sale and distribution, of perfumes who truthfully describe their products and represent country or source or origin thereof; to the substantial injury of competition in commerce: Held, That such acts and practices were to the prejudice of the public and coll· petitors and constituted unfair methods of competition. Before Mr. William 0. Reeves, trial examiner. Mr. S. Brogdyne Teu, II, for the Commission. Mr. John H. Glaccum of Munn, Anderson & Liddy, of New York City, for respondents.

Complaint Pursuant to the provisions of an Act of Congress approved Sep· tember 26, 1914, entitled "An Act to create a Federal Trade Commis- FlORET SALES CO., INC., ET AL. 807 Complaint sion,' to define its powers and duties, and for other purposes," the Federal Trade Commission, having reason to believe that Fioret Sales Company, Inc., a New York corporation, and Murray W. Morin and Irving Unterman, individuals and officers of Fioret Sales Company, Inc., hereinafter referred to as respondents, have been and are using ~nfair methods of competition in commerce, as "commerce" is defined ln said Act of Congress, and it appearing to said Commission that the 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, Fioret Sales Company, Inc., is a corporation organized and doing business under the laws of the State of New York, having its principal place of business at 312 East Thirtysecond Street, city of New York, State of New York. Respondent•, Murray ,V. Morin and Irving Unterman, are respectively president and secretary and treasurer of Fioret Sales Company, Inc. Respondluts are now and have been for more than 1 year last past enga,ged in the manufacture and in the sale and distribution of perfumes in commerce between and among the various States of the United States and in the District of Columbia.

PAR. 2. In the course and conduct of their said business respondents are now and have been in substantial competition with other indi- ''iduals, partnerships, firms, and corpora.tions likewise engaged in the business of manufacturing and selling perfumes in commerce between and among the various States of the United States and in the District of Columbia.

P.AR. 3. 'Vhen said products are sold respondents transport or cause· same. to be transported from their place of business in the State of New York to purchasers thereof located 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 1 year last past and still 18 a constant current of trade in commerce in said products so sold by respondents between and among the various States of the United States and in the District of Columbia.

PAR. 4. Respondents, in soliciting the sale and in the selling of their Products, and for the purpose of creating a demand on the part of t~e consuming public for said commodities, have advertised their Products through the media of price lists and other printed matter ):>ublished, issued, and circulated through the United States mails to their customers and prospective customers in the various States of the United States and in the District of Columbia. . In the aforesaid ways and by the aforesaid means the respondents make and have made to the general public false and misleading statelnents with reference to the commodities offered for sale by them. Complaint 26 F. T.C. PAR. 5. The said price lists and other printed matter published and _ distributed by respondents as aforesaid contain misleading descriptions and representations concerning their products. For example, certain of the perfumes have printed on the carton thereof the following words and phrases:

Les Parfums des Jardins de Fioret Paris New York The above language appears on the display part of the carton in which respondents' perfumes are sold.

On the back of the display carton in which respondents' perfumes nre sold appears the following in French:

le Parfum.

et !'ensemble de sa presentation out et crees en France par Les Parfums des J11.rdins de FlORET a Paris Ils sont la propriete exclusive de FlORET, INC.

pour les Etats Unis d'Amerique ou Us sont completes TODrrES CONTREFACONS seront rlgourensement ponrsuivies FlORET, INC.

New York Paris BOTTLED IN U. S. A.

PAR. 6. The aforementioned representations and descriptions ap· pE:>aring on the aforesaid articles and their containers by labels with the above set out words printed thereon serve to lead purchasers and prospective purchasers into the erroneous and mistaken belief that the commodities so described and referred to are manufactured in France. PAR. 7. For many years a substantial part of the consuming public has had, and still has, and has so expressed, a marked preference for perfumes which are manufactured or compounded in foreign coun· tries, especia.lly in France, and then imported into the United States. PAR. 8. In truth and in fact, the aforesaid articles are not manu· factured in France or any other foreign country, but are domestic products made or compounded in the United States. PAR. 9. There are among the competitors of respondents manu· facturers and distributors of like and similar products who truthfully advertise and represent the nature, merit, and origin of their respecth-e products.

FlORET SALES CO., INC., ET AL. 809 Findings There are also among the competitors of respondents manufacturers and distributors of like and similar products who refrain from a<lve1using or representing, through their price lists and other printed matter, that the merchandise offered for sale by them has a value, lnerit, or origin that it does not have.

PAR. 10. The effect of the foregoing false and misleading representations and acts of the respondents in selling and offering for sale such items of merchandise as hereinbefore referred to is to mislead a substantial part of the purchasing and consuming public in the sev- ~ral States of the United States and in the District of Columbia by Inducing them to mistakenly belie,·e that: (1) The various articles of perfumes hereinabove set out and described in paragraph 5 are manufactured in France and import(\d from that country into the United States.

PAR. 11. The aforesaid fltlse and misleading statements and representations on the part of n•spondents have induced and still induce a substantial number of consumer purchasers of said products to b.uy the Products offered for sale, sold, and distributed by the respondents on account of the aforementioned mistaken and erroneous belief. As a result thereof trade has been dinrted from those competitors of responde>nts E>ngaged in similar businesses. .As a consequence thereof substantial injury has been and is being done by responde>nts to com- Petition in commerce between and among the various States of the Dnited States and in the District of Columbia. PAR. 12. The aforementioned methods, acts, and practices of respondents are all to the prejudice of the public and of respondents' c?mpetitors as hereinabove alle>ged. Such methods, acts, and practices constitute unfair methods of competition in commerce within ~he intent and meaning of Section 5 of an Act of Congress, entitled .An Act to create a Federal Trade Commission, to define its powers and duties, and for other purposes," approved September 26, 1914. REPORT, FINDINGS AS TO THE FACTS, AND ORDER Pursuant to the provisions of an Act of Congress approved Sept~lllber 26, 1914, entitled "An Act to create a Federal Trade Commis- ~on, to define its powers and duties, and for other purposes," the ederal Trade Commission, on June 29, 1937, issued, and on June 30, 1937, sen-ed its complaint in this proceeding upon respondent Fioret8 ale~ Company, Inc., a corporation and respondents Murray ,V.111 orm and Irving Unterman, individually, and as officers of respondent Fioret Sales Company, Inc., charging them with the use of unfair methods of competition in commerce in violation of the Findings 26 F. T. C. 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 S. Brogdyne Teu, II, attorney for the Commission, and in opposition to the allegations of the complaint by John H. Glaccum, attorney for the respondents, before William C. Reeves, an examiner of the Commis· sion, theretofote duly designated by it, and said testimony and other ~vidence 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 thereto, testimony and other evidence, briefs in support of the complaint and in oppo· sition thereto (oral argument not having been requested), and the Commission having duly considered the same and being now fully ad vised 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 PARAGRAPH 1. The respondent, Fioret Sales Company, Inc., is a corporation organized and doing business under the laws of the State of New York. Its principal office and place of business are at 245 Fifth Avenue, New York, N. Y. Its shipping point is at 312 East Thirty-second Street, New York, N. Y. It is engaged in the sale and distribution of perfumes and toilet waters. Respondents Murray W. Morin and Irving Unterman are respec· tively, president and secretary and treasurer of respondent Fioret Sales Company, Inc.

PAR. 2. Respondent's products are distributed from its place of business to retailers located throughout the United States. When orders are received for respondents' said products they cause them to be shipped :from their place of business at New York, N.Y., to the purchasers thereof located at various points in the various States of the United States other than the State of New York. Since the date of incorporation, 2 or 3 years ago, the respondent, Fioret Sales Company, Inc., under, by, and through the direction of respondents :Murray '\V. Morin and Irving Unterman, has maintained a course of trade in said products in commerce in and among the various States of the United States and in the District of Columbia. PAR. 3. At all times since respondents entered into said business they have been in substantial competition with other corporations, and with partnerships and individuals engaged in the sale and distribu· tion, or manufacture, sale, and distribution of perfumes in commerce, FlORET SALES CO., INO., ET AL. 811 806 Findings among and between the several States of the United States and in the District of Columbia.

PAR. 4. The respondents have advertised and now advertise their products by means of labels attached to the containers and cartons in which respondents' products are packaged and sold. On the labels appear certain words and phrases purported to be descriptive of the product and its source or country of origin. ·The following is representative of the statements and representations made on the labels attached to the containers and cartons of respondents' products: Les Parfums des Jardine de Floret Paris New York On the back of the display carton in which respondents' perfumes are packaged and sold appears the following: le Parfum et !'ensemble de sa presentation ont ete crees en France par Les Parfums des Jardins de FlORET a Paris lls sont la proprlete exclusive de FlORET, INC.

pour les Etats Unis de 'Amerique ou ils sont completes COUTES CONTREFACONS seront rigoureusement poursuivies FlORET, INC.

New York Paris BOTTLED IN U.S. A.

Substantially all of the above set out statements and representations appearing on the containers and cartons in which respondents' prod- Ucts are packed and sold are in the French language. PAR. 5. The respondents purchase the perfumes which they sell and distribute under the false and misleading labels above described from the George Silver Import Company (now Roure-Dupont, Inc.). The George Silver Import Company imports essential oil or flower essence, aromatic chemicals, and animal products which are blended in various Proportions depending upon the formula of the specific odor desired. ~ometimes thesEl! ingredients are imported separately in bulk. Sometimes these ingredients are blended before being imported. "When they are blended, they are referred to in the trade as perfume concen- 812 FEDERAL TRADE COl\'Il\'IlSSION DECISIONS Findings 26 F. T. C. trate. The George Silver Import Company imports either the perfume concentrate already blended in the proper proportion for the odors desired or it imports separately the necessary iugredients of the completed perfume conceutrate. After the ingredients have Leen blended so as to form the perfume concentrate, it is still necessary to compound or blend this concentrate with an alcohol vehicle. All of the perfumes purchased by the respondents from the George Silver Import Company are actually compounded in the United States. As stated above, in some instances ingredients are imported separately, then blended, so as to form perfume concentrate, aud subsequently compounded with the alcohol vehicle. In other instancesr the perfume concentrate made up of the same ingredients which are sometimes imported separately is imported and subsequently emupounded with the alcohol vehicle. Perfume concentrate as made up of the various ingredients before the addition of the alcohol vehicle is not ready for use as a perfume by members of the general purchasing public and cannot satisfactorily l.Je used for such purpose. A perfume concentrate is not a perfume within the generally understood meaning of that term as used by the purchasing public. A perfume, as that. term is understood by the public generally and by the trade, is a compound of a perfume concentrate and au alcohol vehicle. A perfume is not made or compounded until the alcohol or other agent of application has been united with the concentrate. There exists in the minds of the purchasing public a preferenee fo~ imported perfumes and a particular preference for perfumes made in and imported from France .

. PAR. 6. The use by respondents of the statements and representations on the cartons and containers, as set out hereinabove, in which their products are packaged and sold has had, and now has theca pacity and tendency to and does mislead and deceive a substantial part of the purchasing public into the erroneous and mistaken belief that said representations are true and that the said perfume is an imported perfume from Paris, France.

Acting under the mistaken and erroneous Leliefs induced by the· false, deceptive and misleading statements and representations herein referred to, the public has purchased a substantial volume of respondents' products, with the result that trade has been unfairly diverted to the respondents from their competitors engaged in the manufacturer sale, and distribution, or in the sale and distribution of perfumes, wh«> truthfully represent the country or source of origin of their products. As a consequence thereof, substantial injury has been, and is, being done by respondents to competition in commerce between and amongthe various States of the United States and in the District of Columbia- FlORET SALES CO., INC., ET AL. 813 806 Onlt>r CONCLUSION The aforesaid acts aud practices of the responde11ts, Fioret Sales Company, Inc., Murray \V. :Morin and Irving Unterman, individually, and as officers of the respondent, Fioret Sales Company, Inc., are to the prejudice of the public and to the respondents' competitors, and con- ~;titute unfair methods of competition in commerce within the intent aud meauiug of Section 5 of an Act of Congress approved September 26, l!H4, entitled "An Act to create a Federal Trade Commission, to dl:'fine its powers and duties, and for other purposes." ORDER TO CEASE AND DESIST This proceeding having bt>en heard by the Federal Trade Commission upon the complaint of the Commission, the answer of respondents, testimony, aud other evidence taken before \Villiam C. Reeves, an exantiner of the Commission, theretofore duly designated by it, in sup- })ort of the allegations of said complaint and in opposition thereto, and briefs filed herein (oral argument not having been requested), and the Commission having made its findings ns to the facts and its conclusion that said respondents haw Violated the pwdsio11s 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 ~ o-rdaed, That the respondents, Fioret Sales 'company, Inc., a Cotporatiou, its officers, represpntatins, agents, and employees, and Murray \V. Morin and Irving Unterman, individually, and as officers of respondent Fioret Sales Company, Inc., in connection with the offl:'ring for sale, sale, and distribution of perfumes in interstate comllteree or in the District of Columbia, do forthwith cease and desist frolll, directly or through implication:

He presenting, through the use of such words as "Les Parfums des Jardine de Fioret," or through the use of any foreign words or Phrases, or through any other means or device, or in any manner, that Perfumes mauufactured or compounded in the United States are made ?r compoundetl in France or in any other foreign country, or are 1m ported.

It i-~ further oJ'dered, That the respondents shall, within 60 days after service upon them of this order, file with the Commission a rep.ort in writing setting forth in detail the manner and form in Wlnch they have complied with this order.

1604!'il"'-39-VOL,26--54 814 FEDERAL TRADE COl\IMISSION DECISIONS Syllabus 261!'. T. C.