Giroux Company, Inc.

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

IN Tile MA'ITER OF GIROUX COMPANY, INC.

COMPLAINT, FINDINGS, AND ORDER IN. REGARD TO THE ALLEGED VIOLATlOI'I OF SEC. 5 OF AN ACT OF CONGRESS APPROVED SEPT. 26, 1914 Docket .f/131. Complaint, Mar. 16, 1942-Decision, Sept. 1, 1942 ' ' Where Lea & Pen·ins •·worcestershire Sauce" had long been made in England and imported into the United States in highly distinctive bottles, container~ t I and wrappings, and as thus made and Imported, and later made in the Unlt~e States in accordance with a secret formula, had come to enjoy Nation-wl !C popularity for many years and to be preferred over the much cheaper domestic Worcestershire Sauces; and thereafter a domestic manufacturer, engaged e interstate sale and distribution of its much cheaper Worcestershlre snuc which was similar in colot·, odor and general appearance to the aforesaid ~: & Perrins, and which, as Worcestershire Sauce, it sold under various tru r names and brands, together with its own name or the name of the distributo on label and wrapper- 9 (a) Made use of labels and wrappers for its said sauce, packaged in contalnerb of the same size and shape as those used by said Lea & Perrins, upon wblC the typography, border, dividing lines and color scheme were similar to~ and in some instances the phrases identical ·with, those on the wrapper 0 label long theretofore uii'ed by said Lea & Perrins ; With tendency and capacity to mislead and deceive members of the purchasing public into the belief that its Worcestershire Sauce was in fact the Worcester; shire Sauce made and sold by Lea & Pen·ins, and as a result, into purchase 0 substantial quantities thereof; and ' r (b) Falsely represented to the purchasing public, through u8e of trade name brand "English Pride" in designating its sauce and "Old English Bran upon private brand merchandise, that its said domestic product was made tn England and imported into the United States; With tendency and capacity to mislead and deceive a substantial portion ot tb~ purchasing public into the mistaken belief that said product was import~: from England, and as a result into purchase of substantial quantities tbereo U 9 Held, That such acts and practices, under the circumstances set forth, were to the prejudice and injury of the public, and constituted unfair and deceptl"~'e acts and practices in commerce.

Mr. S. F. Rose for the Commission.

Mr. O.P. GoepelandDiamond,Rabin.& Mackay, of New York City, for respondent.

Complaint Pursuant to the provisions of the Federal Trade Commission ,t\.ctl and by virtue of the authority vested in it by said act, the Federa Trade Commission, having reason to believe that Giroux Co., Inc., 11 GIROUX CO., INC. 421 420 Complaint cor·poration, h~reinafter referred to as respondent, has violated the Provisions of the said act, and it appearing to the Commission that a hl'oceeding by it in respect thereof would be in the public interest, f ereby issues its complaint, stating its charges in that respect as ~~: . • PARAORAPII 1. Respondent, Giroux Co., Inc., is a corporation, organlZed and existing under and by virtue· of the laws of the State of New "[ork, with its principal place of business located at 401 West Theireenth Street, in the city of New York, State of New York. PAR. 2. Respondent is now, and for several years last past has been, engaged in the manufacture, sale, and distribution of a table sauce ~nder. the trade names or brands of "English Pride," "Apex," and ~arhament." Respondent also sells said sauce as private brand mer- ~ a~dise to distributors under various trade names. Among and :Plcal of such private brand trade names are "Monarch Brand," "Sunt earn," "Buddie Brand," and "Old English Brand." Following the tade or brand name the words "'Vorcestershire Sauce" are alwaysu d ' se · The aforesaid brands or labels are attached to each bottle of Said sauce and also printed on the wrapper in which the bottles are ~nciosed. The riame of the respondent or distributor is also printed on oth the label and wrapper. All of the above-designated sauces are Put llp in 5-ounce bottles and are sold as low as ()5 cents per dozen, and ret '1 a1 for 10 cents or more per bottle. t Respondent causes its said product, when sold, to be shipped and ;ansported from its aforesaid place of business in the State of New trk to the purchasers thereof located in States other than the State () New York, who in turn sell to retailers who sell to the consuming PU.~lic. Respondent maintains, and at all times mentioned herein has lttaJntained, a course of trade in said product in commerce among tt~d between the various States of the United States and the District <> Columbia.

f PAR. 3. In 1835, Lea & Perrins, a copartnership, began the manuafture of a sauce in the County Worcestershire, England, which they ~h leg, "Worcestershire Sauce,'' and began the exportation thereof to e Dnited States about 1849 and continued to export it in very large, !Uantities untii about the year 1898. During said period this product as sold extensively in all parts of the United States. In 1898 the ~rtnership became incorporated under the laws of the State of New thOrk.and began the manufacture of. the sauce in this country. Since s} ~n ~t has been, and now is, engaged in the business of selling and 11PPing Lea & Perrins' "'\Vorcestershire Sauce from New York Cityl•tJn s.a1·d State of New York to wholesale grocers m· every State of the united States. The business of this corporation, ~n the sale of Wor- Complaint .35F.T.C· cestershire Sauce in the United States, amounts to !fibre than °~ 8 million dollars per year. Lea & Perrins' 'Vorcestershire Sauce 15 prepared according to a secret formula. This product is one of rec· ognized and uniform excellence, and has enjoyed a Nation-wide popu· larity for many years. The wholesale price of Lea & Perrins' Wor· cestershire Sauce is $2.75 per dozen bottles; it retails at 30 cents p~r bottle. There is a decided preference among the consuming public for Lea & Perrins' W orcestershire Sauce, as compared to the Wor· cestershire Sauce sold by respondent.

The size and shape of the bottles containing Lea & Perrins' Wor· cestershire Sauce, and the features o£ Lea & Perrins' label and wrapd per have for many years, been, and are now, highly distinctive an constitute principally the means by which this product is identified by the purchasing public.

PAR. 4. The sauce sold by respondent is strikingly similar in color, . odor, and general appearance to Lea & Perrins' 'Vorcestershire Sauce. All of these sauces are packed in 5-ciunce bottles which are the sa~e distinctive size and shape as that used by Lea & Perrins in bottling 1t; product. Respondent also uses a wrapper of the same type of pape :and same color on all o£ these sauces as is used by Lea & Perl'lns, upon which the typography, border, dividing lines, color scheme, and other distinctive features in the printed matter, including in some instances the identical wording, simulate the wrapper or label no"' used by Lea & Perrins and so used for many years prior to the aclop· tion thereof by the respondent.

PAR. 5. The use by the respondent of labels and wrappers simulat· ing the labels and wrappers used by Lea & Perrins, and the use by the respondent o£ bottles of the same size and distinctive shape as those used by Lea & Perrins, have had and now have the tendency and ca· pacity to mislead and deceive members of the purchasing public i~to the erroneous and mistaken belief that respondent's 'Vorcestershire Sauce is in fact 'Vorcestershire Sauce manufactured and sold by Lea & Perrins and into the purchase of substantial quantities of respond· ent's product as a result o£ such erroneous and mistaken belief so engendered.

PAR. 6. The use by the respondent of the trade name or brand "English Pride" in designating its sauce, and o£ the name "Old Eng· lish Brand" upon private brand merchandise, serve as representations to the purchasing public that said sauce is made in England and i~· ported into the United States. In truth and in fact, said product 15 manufactured by respondent in the State o£ New York and is not an imported product.

GIROUX CO., INC. 423 42o Findings PAn. 7. There is a preference among a substantial portion of the I>urchasing public for '\Vorcestershire Sauce made in England, and there is a firm and fixed belief among such persons that it is superior to domestic J1roducts of like character.

PAn. 8. The use by the respondent of the said trade names or brands "English Pride'' and "Old English Brand" has had and now has the tendency and capacity to, and 'does, mislead and deceive a su~stantial portion of the purchasing public into the erroneous and ~Mistaken belief that said products are imported from England, and lnto the purchase of substantial quantites of said products as a result of such erroneous and mistaken belief.

PAn. 9. The aforesaid acts and practices of the respondent as herein alleged are all to the prejudice and injury of the public and constitute unfair and deceptive acts and practices in commerce within the intent and meaning of the Federal Trade Commission Act. REPORT, FINDINGs AS TO THE FACTs, AND Onder Pursuant to the provisions of the Federal Trade Commission Act, the Federal Trade Commission, on the 16th day of 1\Iarch 1942, issued and thereafter served its complaint in this proceeding upon respondent, Giroux Co., Inc., a corporation, charging it with the use of unfair lt~d deceptive acts and practices in commerce in violation of the pro- ~Isions of said act. On April 4, 1942, respondent filed its answer to ~he complaint. Thereafter~ a stipulation was entered into whereby lt Was stipulated and agreed that a statement of facts executed by the secretary-treasurer of the respondent corporation and by its coun- Sel and Richard P. Whiteley, Assistant Chief Counsel for the Federal 'trade Commission, ffi.Ibject to the approval of the Commission, may ~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 may proceed upon said statement of facts to make its report, stating. its findings as to the facts (including inferences which may be drawn from the said stipulated facts) and its conclusion based thereon, and enter its order disposing of the proceeding without the presentation of argument or the filing ?f briefs. Respondent expressly waived the filing of the trial exam- Iner's report upon the evidence. Thereafter, this proceeding regularly came on for final hearing before the Commission on said com- Plaint, ans~ered, and stipulation, said stipulation having been apll.roved, accepted, and filed; and the Commission, having duly con- .8ldered the same and being now fully advised in the premises, finds ~hat this proceeding is in the interest of the public and makes this lts findings as to the facts and its conclusion drawn therefrom. Findings 35 F.'l'. 0· FINDINGS AS TO THE FACTS PARAGRAPH 1. Respondent, Giroux Co., Inc., is a corporation, or· . ganized and existing under and by the virtue of the laws of the State of New York, with its principal place of business located at 401 West Thirteenth Street, in the city of New York, State of New York. PAR. 2. Respondent is now, and for several years last past has been, engaged in the manufacture, sale, and distribution of a table sauce under th~ trade name or brand of "Parliament." At various time~ during the past several years, respondent has manufactured, sold, an f distributed its said sauce under the trade names and brands ~ "Apex"' 1'EnO'lish0 I:>ride"' and "Old EnO'lish0 Brand" • Respondent• 1 ,,5 1'Apex" brand was discontinued several years ago. "Old Enghs 1 brand, a customer's brand, was discontinued about 1938, and its "En~· lish Pride" brand was discontinued on January 12, 1942. The pr~si·. dent of respondent corpora~io.n wa? interviewed by a repre:entatn'~ of the Federal Trade Commission with respect to the matters mYolve in this proceeding on June 8, 1937. Respondent also sells said sauce as private brand merchandise to distributors under various trade names. Among and typical of such private brand trade names a~e~ "Monarch Brand," "Sunbeam," "Buddie Brand," and "Old Englls Brand," the last of these having been discontinued. Following the trade name or brand name the words "'Vorcestershire Sauce" are al· ways used. The afores~id brands or labels are attached to each bottle of ~aid sauce and are also printed on the wrapper in which the bottles are enclosed. The name of the respondent or distributor is always~ printed on both the label and the wrapper. All of the above designate sauces are or were put up in 5-ounce bottles and are or were sold ns low as approximately 65 cents per dozen, and retail or retailed for 10 cents or more per bottle. . · d Respondent causes its said products, when sold, to be shipped an transported from its aforesaid place of business in the State of N"e\f York to the purchasers thereof located in States other than the State of New York, who in turn sell to retailers who sell to the consuming' public. Respondent maintains, and at all times mentioned herein ha~ maintained, a course of trade in said products in commerce among 11~ t between the various States of .the United States and in the Distric of Columbia.

PAR. 3. In 1835, Lea & Perrins, a copartnership, begdn the ma~u· facture of a sauce in the County of 'Vorcestershire, England, which they called "'Vorcestershire Sauce," and began the exportation there· of to the United States about 1849 and continued to export it in ~er! large quantities until about the year 1898. During said period this OIROUX C0.1 lnc. 425.

420 Findings Product was· sold extensively in all parts of the United States. In 1898 the partnership became incorporated under the laws of the State 0~ New York and began the manufacture of the sauce in this country Since then it has been, and now is, engaged in the business of manufacturing, selling, and shipping Lea & Perrins, Inc., Worcestershire Sance from New York City in said State of New York to wholesale grocers in every State of the United States. The business of this corporation, in the manufacture and sale of \Vorcestershire Sauce in the United States, amounts to more than one million dollars per year. Lea & Perrins, Inc., 'Vorcestershire Sauce is prepared according to a. ~ecret formula. This product is one of recognized and uniform excelence, and has enjoyed a Nation-wide popularity for many years. The '\\>'wholesale price of Lea & Perrins, Inc.", '\Vorcestershire Sauce is $2.75 Per dozen bottles; it retails at 30 cents per bottle. There is a decided Preference among the consuming public for Lea & Perrins, Inc.J ~Vorcestershire Sauce, as compared to the 'Vorcestershire Sauce sold Y respondent.

· 'I'he size and shape of the bottles containing Lea & Perrins, Inc.~ ~Vorcestershire Sauce, together with the features of Lea & Perrins, ?c., label and wrapper have for many years been, and are now, highly dlstinctive and constitute principally the means by which this prod-. 'llct is identified by the purchasing public. Other manufacturers o~ \Vorcestershire Sauce have adopted and now use bottles of the same 13!1ape and size as the bottles used by Lea & Perrins, Inc. Such bottle.s are purchased as stock bottles from glass bottle manufacturers. Pan. 4. The sauce sold by respondent is similar in color, odor, and ISeneral appearance to Lea & Perrins, Inc., vVorcestershire Sauce. All of these sauces are packed in 5-ounce bottles which are the same size . ~nd shape as that used by Lea & Perrins, Inc., in bottling its product. or many years respondent has used a wrapper of the same type of fap('r and same color on all of these sauces as is used by Lea & Perrins, nc., upon which the typography, border, dividing lines, colo~ scheme, :nd .other features in the printed matter, including in some instances: ~e ldentical phrases, are similar to the wrapper or label now used by a & Perrins, Inc., and so used for many years prior to the ad~ption thereof by the respondent. The wrappers and labels theretofore used Y the respondent were discontinued in December 1941. PAR. 5. The use by the respondent of labels and wrappers similar the labels and wrappers used by Lea & Perrins, Inc., together with !0 he Use by the respondent of bottles of the same size and shape as those 'lls.ed by Lea & Perrins, Inc., have had the tendency and capacity to lO.Mislead and deceive members of the purchasing public into the erroneous and mistaken belief that respondent's Worcestershire Sauce is. 42o FEDERAL TRADE CO:MMISSION DECISIONS Order 35F. T.C.

in fact 'Vorcestershire Sauce manufactured and sold by Lea & per· rins, Inc., and into the purchase of substantial quantities of respond· ent's product as a result of such erroneous and mistaken belief 50 engendered.

PAR. 6. The use by the respondent of the trade name or. brand "English Pride" in designating its sauce, and of the name "Old English Brand" upon private brand merchandise, have served as rer resentations to the purchasing public that said sauce was made 111 England and imported into the United States. In truth and in fact£ said product has been manufactured by respondent in the State 0 New York and is not an imported product.

PAR. 7. There is a preference among a substantial portion of the purchasing public for Worcestershire Sauce made in England, a~d there is a firm and fixed belief among such persons that it is superior to domestic products of like character.

PAR. 8. The use by the respondent of the said trade names or brands "English Pride" and "Old English Brand" has had the tendency and capacity to mislead and deceive a substantial portion of the purchas· ing public into the erroneous and mistaken belief that said produ~t~ are imported from England, and into the purchase of substantia quantities of said products as a result of such erroneous and mistaken belief.

CONCLUSION The aforesaid acts and practices of the respondent, as herein foun~' are all to the prejudice and injury of the public and constitute unfal~ and deceptive acts and practices in commerce within the intent an meaning of the Federal Trade Commission Act. ORDER TO CEASE AND DESIST This proceeding having been heard by the Federal Trade Coal}lllis· sion upon the complaint of the Commission, the answer of the re· spondent, and a stipulation as to the facts entered into by the respond·_ ent herein and Richard P. 'Vhiteley, assistant chief counsel for the Commission, which provides, among other things, that without ftW ther evidence or other intervening procedure the Commission JllaY issue and serve upon the respondent herein findings as to the facts and conclusion based thereon and an order disposing of the proceeding, and the Com~ission having made its findings .as to the facts and conclusion that said respondent has violated the provisions of the Feueral Trade Commission Act.

It i.s orde~ed, That the respondent, Giroux Co., Inc., a corporation, and its officers, representatives, agents, and employees, directly or GIROUX CO., INC. 427 Order through any corporate or other device, in connection with the offering for sale, sale, and distribution of 'Vorcestershire Sauce, whether sold Under that name or any other name, in commerce, as "commerce" is defined in the Federal Trade Commission Act, do forthwith cease and desist from :

1. Using wrappers, containers, or labels which simulate the wrappers, containers, or labels used by Lea & Perrins, Inc., in marketing lts Worcestershire Sauce, or otherwise representing that respondent's Product is 'Vorcestershire Sauce manufactured and distributed by Lea & Perrins, Inc.

2. Using the words "English Pride" and "Old English Drand," or any other words which indicate English origin, to designate, describe, or refer to '\Vorcestershire Sauce which is not made in England. It iB fwrtMr ordered<, That the respondent shall, within 60 days ~after service upon it of this order, file with the Commission a report 1n writing setting forth in detail the manner and form ·in which it has complied with this order.

'.' i I 35F. T.C. Order