Rudolph Wurlitzer Co

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.. -IN THE l\iatter OF ~; .· THE RUDOLPH WURLITZER COMPANY c·o . • ·' · · · · MPLAINT, FINDINGS, AND ORDER IN REGARD TO THE ALLEGED VIOLATION· OF SEC. IS OF AN ACT . OF CONGRESS APPROVED SEPT. 26, _1914 . Docket 45.25. Complaint, June 26, 1911-Decision, Aug. 5, 1912 \\'h ' ere a corporation, engaged in the manufacture and interstate sale and dlstrl-' ··:button at wholesale of pianos covered or finished in whole or in part with a· Ji lnaterial, made exclusively for it, and designated by it "Kordevon"- \ epresented or implied, through use of aforesaid, commonly pronounced "Cordo·, , :van," term, in advertisements of ,its said products and In the labels attached '!' ·.thereto, that said "Kordevon" was Cordovan leather; . he_ facts being that the material In question· was a closely woven cotton fabric · With• several coats of pyroxylin plastic deposited thereon, the appearance, texture and feel of which was such as to Induce the public Into the belief that It was genuine leather; and subsequent use in advertising of words "Plastic. Fabric," Immediately after word "Kordevon," on its labels of words, parent· thetlcally, "A plastic fabrlc" in small print, and on the back of each plano, the statement, "In the manufacture of the covering for this piano, 10 c:oats' Of pyroxylin plastic are used" were Insufficient to correct aforesaid erro- \V neous impression; · . hh etrect of misleading and deceiving a. substantial portion of the purchasing PUblic Into the mistaken bellef that the covering or fl.nlshlng material on said , Pianos was genuine Cordovan leather; and of thereby 'causing it to purchase substantial quantities of said pianos, llecam:e of such mistaken belief,' ]J Whereby trade was diverted to It from Its competitors: eld, That such nets and practices, under the circumstances set forth, were all to· the prejudice of the public and competitors, and constituted unfair methods Of competition In commerce and unfair and deceptive acts and practices therein .

. :Ali-. Eld;,t P. Schrup for the Commission. Jt llrtr'th:on, Oolston,·Ooldsmith & Hoadly, of Cincinnati, Ohio, and 1',/ke Lanier and Mr. Elden McFaroland,·of Washington, D. C., for respondent.

COMPLAINT Pur~mant to ttte provisions of the Federal Trade Commission Act,. and by virtue of the authority vested in it by said act, the Federal Trade Commission, h~ving rea~01i. to believe that The Rudolph Wur-. 1~Zer Co., a corporation, heremafter referred to as respondent, has "1?lated the provisions of the said act, and it appearing to the Com_. lnlssion that a proceeding by it in respect thereof would be in the, ;ll.blic interest, hereby issues its complaint, stating it~ charges in that espect as follows:

P'ARAORAPH 1. The respondent is a corporation organized, existing and doing business under and by virtue of the laws of the State of 292 FEDERAL TRADE CO:t\q.aSSION Decisions Complaint 35F. T. C.

Ohio, with its .principal office and place of business at 121 East Fourth. Street, in the city of Cincinnati, State of Ohio.· The respondent is, · and for more than 2 years last past has been, engaged in the business of manufacturing pianos, covered or finished, in whole or in part, with a m!lterial designated by respondent as "Kordevon," and in sell· ing and distributing said pianos at wholesale to dealers, to be resold bY said dealers to the purchasing public. Respondent has caused, and , now causes, its said pianos, when sold, to be transported ·from its manufacturing plant in the city of De Kalb, State of Illinois, to t~e purchasers thereof located in various States of the United States other than the State of Illinois, and in the District of Columbia. Respond· ent maintains, and at all times mentioned herein has maintained, a course. of trade in said pianos in commerce among and between the several States of the United States, and in the District of Columbia. Respondent is now, and has been at all times mentioned herein, in substantial competition with other corporations, firms, partnerships, and individuals engaged in the sale and distribution of pianos in ~Qrn· merce among and between the several States of the United States and in the District of Columbia. . PAR. 2. In the course and conduct of its aforesaid business, and for the imrpose of' inducing the purchase of its said pianos,, respondent . has caused, and now causes, advertisements to 'be inserted. in news· papers, magazines, and trade journals having. wide interstate circula· tion, and has distributed; and now distributes, circulars and letters to, the purchasing public in various States of the United States and· iJ1 the District of Columbia. In said advertisements,· circulars, and' ~et· ters, so distributed, many false and misleading statements and repre; sentations are made by the respondent in which the term "Kordev?n is'prominently used as the trade name for, and as being_ descriptive' of, the m.~~:te.riaf used. ~s ac~vering or }ini~Iling material, in whole or in:. part, for respondent's :pianos. TyjJical of the statements and repre-sentations so made and circulated by the respondent are the following: • • • .A Plano that Actually Blends wi~h your Home • • • Now', at last, WurlltzPr solyes this major problem for you with America's. most colorful plano-a refreshingly new Wurlitzer finished In the exclusive new Kordevon. . ; Kordevon, with its soft, rich texture, offers yon' a variety of tasteful colo~· with which to enhance the beauty of your llving room-Kordevon Is durable, too-defies extremes of heat or cold, dampness or dryness-is easy to ~p fresh and beautiful. · .. Wurlltzer is the flr11t to use Kordevon which evokes a new epoch In luxufiouS plano finishing. .

Finished In Kortievon, a remarkably beautiful and durable finish teatured' exclusively by Wurlltzer • . Finished in colorful Kordevon. · THE RUDOLPH WURLITZER CO. 293 291 Complaint 'Wurlitzer Is first with Kordevon, a new finish, ·hailed with enthusiasm by leading decorative authorities for Its unique beauty, its soft, rich texture, its ·· \'artety o! tasteful shades .

. In advertise~ents published in trade magazines, and intended for the trade and for respondent's dealers but not for the purchasing :Public, respondent has represented the covering or finishing material Used on its pianos as follows :

IlESEMBLES TOOLED LEATHER In appearance Kordevon Is almost exactly Ilke Ilghtly tooled leather. In fact, the average layman would likely think It- was leather unless told other· \Vise. • PAR. 3. Cordovan is the name by which, as a result of long usage and custom, an excellent grade and type of colored leather has become known to the purchasing and consuming public. Cordovan was origi· llally manufactured in the Middle Ages at Cordova, Spain, of goat· skin, and later of pigskin, and especially of fine horsehide split so as to retain its grain. This type of leather is still so made, and is Used in the manufacture of men's shoes, saddles, and other producbl "'here a fine, durable, and attractive grade of leather is desired. '!'here is a preference among members of the purchasing public for cordovan leather over other types and grades of leather owing to its superior quality and wide reputation for excellence. · PAR. 4. "Kordevon," the name by which respondent designates the CO'\Tering or finishing material for its said pianos, is a product resem· hling tooled leather in appearance, and is manufactured exclusively for the respondent. Its basic structure is that of a closely woven cot· ton fabric on which are deposited several coats of pyroxylin plastic, each coat heated and dried in an oven before the next coat is applied . .t\.after the final coat has dried the so-called "Kordevon" grain is Created by the application of pressure by means of an etched steel :Plate. An irregularity in texture is obtained by a final hand operation. · PAR. 5. By means of the use of the aforesaid term "Kordevon," ~which closely simulates and conforms to the spelling and. pronuncia- ~1011 of cordovan, in describing the covering or finishing material of lts said pianos, respondent has represented and hnplied, and now l'e:presents and implies, that said covering is cordovan, that is to say, a fine, durable, and expensive leather made from split horsehide, goatskin, or pigskin. · . In truth and in fact, respondent's said covering or finishing matetial for its pianos is not cordovan, and does not have. the qualities of ~0l'dovan leather, but is, in fact, a closely woven cotton fabric, coated C0~IMISSION DE·ClSIONS294 FEDE.RAL TRADE Findings 35F. T.C.

with a plastic material, and finished in such a way as to have the appearance of leather. ' . PAR. 6. ·when respondent's dealers display the said pianos, there 1~ nothing to indicate to prospective purchasers the true composition an nature of the covering or finishing material appeai:ing thereon. The ·only side of the said material exposed to the view highly resembles leather, and feels like leather when touched. It is finished so as .to have the appearance of being a beautifully grained leather, and .1ts appearance and texture have the tendency to convey the impress!~~ and induce the belief among prospective purchasers that tpe 5~ 1 1 covering or finishing material is genuine leather. The said matel'l~ ·is not leather, but is, in fact, a cotton fabric coated with plastic, and 19 ·in imitation of genuine leather. . PAR. 7. The use by the respondent of the foregoing false and nns· leading statements, representations ana implications, as aforesaid, ~ns had, and now has, the tendency and capacity to mislead and decerve, and has misled and deceived, and does now mislead and decei~e, "purchasers and prospective purchasers into the erroneous and n11s· taken belief that such statements, representations, and implication£ are true, and has caused, and now causes, a substantial portion ° the purchasing public, because of such erroneous and mistaken belief, to purchase substantial quantities of respondent's pianos. · The use by respondent of the said false and misleading statements, representations, and implications has placed in the hands of respond· ent's, dealers a means and instrumentality whereby said dealers hn-ve been, and are, enabled to mislead and deceive members of the pur· chasing public into believing that said statements and representations were and are true. As a result, trade has been diverted unfairly to ·respondent from respondent's competitors, who do not use "J{orde· von" as a covering or finishing material for their pianos, and who do· ·not falsely represent the quality, nature, or character of the covering or finishing material used, and injury has been done by respondent to ·competition in "commerce. · PAR. 8. ,The aforesaid acts and practices of the respondent e.s 'herein alleged are all to the prejudice of the public and of respondd ent's competitors, and constitute unfair methods of competition an unfair and deceptive acts and practices in commerce within .the -intent and meaning of the Feder~~:l Trade Commission Act. "REPORT, FINDINGS AS TO Tile FACTS, AND ORDER , Pursuant to "the provisions of the Federal Trade Commission .A.yt, 'the· Fe"deral 1Trade Commission on June 26, 1941, issued and subse· THE, RUDOLPH WURLITZER CO. 2!)5 Findings quentiy served its complaint in this proceeding upon the respondent, 'I'he Rudolph vVurlitzer Co., a corporation; charging it with the use of unfair methods of competition in commerce, and unfair and. de· ceptive acts and practices in commerce in violation of the provisions of that act. On August 4, 1941, the respondent filed its answer to ~he complaint. Thereafter, a stipulation was entered into whereby It Was stipulated and agreed that a statement of facts executed. by the respondent through its counsel and Richard P. Whiteley, Assist· ant Chief Counsel for the .Commission, subject to the approval of the ~ommission, might be made a part of the record herein and might . e taken as the facts in this proceeding and in _lieu of testimony ln support of the charges stated in the complaint or in opposition -thereto, and that the Commission might proceed upon such state· ~ent of facts to make its report, stating its findings as to the facts (Including inferences which it might draw from the stipulated facts) and its conclusion based thereon, and enter its order disposing of the P_toceeding. The stipulation further provided, however; that the :Ight to file briefs and present oral argument on the law and on the . Interpretation of the facts stipulated was reserved. '!'hereafter, the proceeding regularly came on for final ~hearing be_fore the Commission on the complaint, answer, stipulation (the Stipulation having been approved and accepted by the Commission and entered of record), and briefs by counsel for the Commission and counsel for the respondent (oral argument having been waived); and the Commission, having duly considered the matter and being llow 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 Paragraph 1. The respondent, The Rudolph Wurlitzcr Co., is a cor- Potation organized, existing, and doing business under and. by virtue ~f t_he laws of the State of Ohio, with the principal office and place of Usmess at 121 East Fourth Street, Cincinnati, Ohio. Respondent is now and for more than 2 years last past has been engaged in the busill~ss of manufacturing pianos covered or finished in whole or in part :"'1th a material designated by respondent as "Kordevon," and in sell- ~ng and distributing such pianos at wholesale to dealers to be resold Y S't1ch dealers to the purchasing public.

t Pan. 2. Respondent causes and has caused its pianos, when sold, 0 he transported from its mant,Ifacturing plant located in De Kalb, 296 FEDERAL TRADE CO:t\'ThllSSION DE·CISIONS Finding:'! 35F.'l'.C· Ill., to purchasers thereof located in vario~s States of the United States other than the State of Illinois and in the District of Columbia. Re· spondent maintains, and at all times mentioned herein has maintained, a course of trade in its pianos in commerce among and between the t!several States of the United States and in the District of Columbia. PAR. 3. Respondent is now, and at all times mentioned herein has lwen, in substantial competition with other corporations and with firJllS, 1'1ntnerships, an<l individuals engaged in the sale and distribution of I•ianos in commerce among and between the several States of the United States and in the District of Columbia.

PAR. 4. In the course and conduct of its business and for the purpose .of inducing the purchase of its pianos, respondent causes and bas (.~aw;;ed advertisements to be inserted in newspapers, magazines, nnd· trade journals l1aving wide interstate circulation, and distributes and · has distributed circulars and ]letters to the purchasing public in various States of the United States and in the District of Columbia. In these adverti!:lements, ·circulars, and letters so distributed, many statements .and representations are made by respondent in which the term ''J{or· <levan" is prominently used as the trade name for, and as being descrip· tive of, the material used in whole or in part us a covering or finishing· material for respondent's pianos. Typical of the statements and repre· &mtations so made and circulated by the respondent are the following: • "' "' A Plano that Actually Blends· with your Home "' "' • Now, at last, Wurlltzer solves this major problem for you with America's most colorful Jlian~a refreRhin~J:Iy new Wurlitzer tinlshed In the exclu:'!lve new Kordevon. Kortlm•ou, with its soft, rich texture, offers you a variety of tasteful coJol'S with wblch to enhance the beauty of your living room-Kordevon if! durable, too--" defies cxtremt>f:! of heat or cold, dawpness, ot• dryness-Is easy to keep fresh llnd hl'llUtifuJ.

Wurlitzer Is the tlrst to use Kordevon which evokes a new epoch In Juxnri0119 plano finishing. . Finished in Km·devon, a remarkably beautiful and durable finish featured f'Xclusively by Wnrlitzet·.

Finished In colorful Kordevon.

WnrUtzer Is first with Kordevon, a new finish, balled with enthusiasm by Jead· lng decorative authorities for its unique beauty, its soft rich texture, its variety Cit tasteful shades.

. · A. piano that embodies all the variety of color, texture, and grain hitherto ol>talnable only in the most expensive custom-built Instruments; This is !llay0 ]J08sible through the use of Kordevon, a remarkflbly beautiful and durable ne« finish featured exclusively by Wurlltzer. Though delicately grained In texture, the surface can withstand severe abuse without showing signs of scutftn~ or 1:1cra tchlng.

THE RUDOLPH WURLITZER CO. 297 291 ', Findings Introduces a new and finer finish KORDEVON new texture--.:..new color-greater durability. · E'inlshed In colorful, soft textured Korllevon, a unique new finish exclusive' \Vlth Wurlltzer. Wurlitzer is the first to use. luxurious, richly textured Kordevou,. II finish of amazing durability. What is more, Kordevon is available In a great tnr!ety of color combin'atlons. · :. PAn. 5. The definitions of Cordovan, as found in 'VebstE>r's New International Dictionary, Second Edition, 1937, are a~ follows: Cor• do-van (kor' de. van; orig. accented cor' do. van'.) adj. [Sp. cordobau, fr. ~ 61'!loba, or Cordova in Spain, fr. L. Corduba. Cf. Cord'Yain.] Of or pertaining :? Cordova; [not cap.] made of the leather manufactured at Cordova. · Cor' do-van, n. 1. A native or inhabitant of Cordo\'a. n _2. [not cap.] Cordovan leather; e~p., a soft~ fine-grained, colored ]('other, chielly l!lnurucLm·ed In the Mhldle Ages, at Cordova, Spain, of goat~>klns, and aft<'r· \Vnrds of split horsehides, goatskin!:', pigskins, etc., and e~>p. of fine hot·sehides 8lllit so as to retain their grain. · · ' · C 3- [not cap.] A brown, red-yellow in hue, of low saturation and low brilliancec· · · lllled also woodland brown. Cf. Color. · PAn. 6. The word or term ''Kordevon~' used by respondent to des~ribe the covering or fini~hing material for its pianos i~ commonly ~lVen a pronunciation similar to the pronunciation given the word or erm "Cordovan." . . . · f PAn. 7. Cordovan leather is frequently. used in the pre~cnt-day manuacture of men's shoes, saddles, and other ·products where a fine, dur- :h.le, and attractive grade of leather is desired, and there is a. preference l'llong some members of the pui·chasing public for articles made from· C:Ol'dovan leather. : f PAR .. 8. The 1~aterial used by respondent to cove: its pianosis .manu·acture>d E>xclusively for responde.nt. When applied, the material has • ~nlyon~ side ~xposed to view, which side highly resl;rnbles grained t other m appearance and has the feel of leather. Its appearance, text~lle, and feel are such as to convey the impression and induce the belief _lat the .material is genuine leather. . , . Actually, however, the material is neither cordovan leather· nor 1 deatl~e.r of any kind, but is a closel! wove~ cotton fabri~ .on which, a,r& <) e!lOsited several coats of pyroxylm plashc. Each coat IS heated and h~led in an oven before the next coat is applied. After the final'{;oat as dried, the so-called "Kordevou" grain is created by the applicutimll ~lf Pressure by means of a~ etched steel pinte. An irregularity in. tex.ll'e'is outained by a final hand operation. . : j ~ ' .

298 FEDE.RAL TRADE C01L\USSION DE.CISIONIS Findings :35F. T.O. PAR. 9. Pianos finished in "Kordevon" were first offered to the pub· lie by respondent in January 1939. Each piano offered for sale by re· spondent since that time has borne the following label: NOTICE The Finish on. this piano is genuine WURLITZER KORDEVON 1t is waterproof and wlll maintain its beautiful finish almost indefinitely if kept properly clean.

FOR CLEANING USE ONLY MILD (IVORY) SOAP AND A DAMP CLOTH Avoid an excessively wet cloth as excessive. moisture may run into your ,piano and cause damage.

DO NOT USE CLEANING FLUIDS, WAXES, POLISHES, OR HARD CAUS· TIO SOAPS. DUST OFTEN WITH A CLEAN DRY CLOTH. Since June 1939 a further label has been affixed by respondent to the back of each of its pianos, which reads as follows: KORDEVON BL'ILT BY THE RUDOLPH WURLITZER COMPANY DE KALB, ILLINOIS IN THE MANUFACTUR.F: OF THE COVERING FOR THIS PIANO, Tlll!i COATS OF PYROXYLIN PLASTIC ARE USED P .AR, 10. The Commission finds that the use by respondent of the term "Kordevon" to designate and describe its material, particularly when viewed in the light of the appearance and feel of the material itself, is misleading to the public in that the term represents .or implies that the material is cordovan leather.

Respondent since May 1940 has inserted 41 all of its advertising · material the words "plastic fabric" immediately after the word "J{or· devon," wherever such word has been used. Since that date, also, the words "a Plastic Fabric" have been added parenthetically, in srna.U print, to the labels described above.

The Commission finds, however, that these terms are insufficient to correct the erroneous and misleading impression created by the use of the word "Kordevon." Likewise, the use by respondent on its labels of the statement, "In the manufacture of the covering for this piano, ten coats of pyroxyln plastic are used," is insufficient to correct such erroneous and misleading impression.

· PAR. 11. The acts and practices of the respondent as herein described have the tendency and capacity to mislead and deceive, and have rnis· THE RUDOLPH WURLITZER CO. 299· 291 Order led and deceived, a. sub~tantial portion of the purchasing public into t~e erroneous and mistaken belief that the covering or finishing mate- ~la} on respondent's pianos is genuine c~rdovan leather; and cause and .a._ve caused such portion of the public to purchase substantial quan- ~h~s of respondent's pianos as a result of the erroneous and mistaken ehef so engendered. In consequence thereof, substantial trade has ~een diverted to the respondent from its competitors who do not engage In similar acts and practices.

CONCLUSION 'lhe acts and practices of the respondent as herein found are all to. the prejudice of the public and of re::;pondent's competitors, and constitute unfair methods of competition in commerce and unfair and de~ptive acts and practices in commerce within the intent and . llleaning of the Federal Trade Commission Act. . ORDER TO CEASE AND DESIST . 'I'his proceeding having been heard by the Federal Trade Commis- Sion upon the complaint of the Commiss,ion, the answer of the ~respondent, a stipulation as to the facts entered into between the ~s?ondent through its attorney and Richard P. Whiteley, Assistant hlef Counsel for the Commission, and briefs in support of and in ~£Position to the complaint (oral ·argument having been waived), and e Commission having made its findings as to the facts and its ~oncl~sion that the respondent has violated the provisions of the .ederal Trade Commission Act.

It is ordered, That the respondent, The Rudolph Wurlitzer Co., a ~~rporation, and its officers, agents, representatives, and employees, t lrectly or through any corporate or other device, in connection with he offering for sale, sale, and distribution of respondent's pianos in. ~'~tnmerce, as "commerce" is defined in the Federal Trade Commission· " ct, do forthwith cease and desist from: · . 1. Using the word "Kordevon," or any other word or term which 81ltlulates in spelling or phonetics the word "Cordovan," as a trade 11~me for, or as descriptive of, any covering or finishing material for, Pianos which is not in fact cordovan leather. t ~· Representing in any manner that the covering or· finishing rna- . e~lal used'· for respmiderit's pianos is leather, when such material Is l f · n act other than leather. , , fit ~ further ord.ered, That the respondent shall, within 60 days :' t(•r 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. · ' FEDE,RAL TRADE COMJ.\USSION DE-CISIONS300 Syllabus 35F.T.C·