Norfolk Mattress Co., Inc

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IN THE MA'ITER OF / NORFOLK MATIRESS.. COMPANY, INC.

COMPLAINT, FINDINGS, AND ORDER IN REGARD TO THE ALLEGED VIOLATIOI'I OF SEC. 5 OF AN ACT OF CONGRESS APPROVED SEPT. 26, 1914 Docket 4488. Complaint, Apr. 16, 1941-Decision, Sept. 14, 1942 Where a corporation, engaged in the manufacture and interstate sale of mat~ tresses, pillows, bedsprings, and studio couches- , Branded and labeled its said products "Dr. Ezera Storm" or "Dr. Ezera Storm's' 111 nnd made use of such designation in referring collectively thereto catalogs and on display cards which it furnished to the retail trade for distribution among the purchasing public, where it also described tbeD1 as "Dr. Ezera · Storm's Supreme Quality Sleep Products," and made such_ statements as "Dr. Ezera Storm's Sleep Products are built for bett~ . sleep • • • provide nerve-soothing, body relaxing comfort from a heal 1 standpoint," "You get correct back Rupport, and good seating comfort -wit~ the Dr. Storm Sleep Sofa," and "In the Dr. Storm line you get • • , the advantages of products designed from a 'Health and family welfare standpoint," etc. ;

'The facts being there had never been a "Dr. "Ezera Storm" or "Dr. Storm" -wbo .originated, designed, or supervised the construction of, or furnished scien; title advice or services in connection with, the design or construction ° said products; the name was merely a trade name coined by it or its prc•le· 't -wng cessor; and, except for the fact that certain of the ticking used by I 'd purchased from a textile manufacturer who treated it to a process-6111 r to make it resi~tant to germ and bacteria growth~eveloped by a docfO" connected with a third concern which apparently licenserl use thereof bd textile manufacturers, no connection of any doctor with any materials u~e by it in its manufacture was shown; . . ·e With effect of causing a substantial portion of the purchasing public to belle' that said products had been dPslgned, approved, or recommended bY.~ doctor, whereby, because of such mistaken belief, It purchased substantia quantities of such products: _ all' Held, That such acts and practices, under the circumstances set forth, were d to the prejudice and injury of the public, and constituted unfair all deceptive acts and practices in commerce.

Before Mr. Andrew B. Duvall, trial examiner. . Mr. Morton Nesmith and Mr. Carrel F. Rhodes for the CommW sion.

Broudy & Broudy, of Norfolk, Va., for respondent. COMPLAINT Pursuant to the provisions of the Federal Trade Commission ,Acts and by virtue of the authority vested in it by said act, the Federll Trade Commission, having reason to believe that the Norfolk 1\{at' NORFOLK MATTRESS· CO., INC. 467 Complaint tr_ess Co., Inc., a corp ..,ration, hereinafter referred to as respondentr has violated the provb,ions .of said act, and it appearing to the Commission that a proceeding by it in respect thereof would be in ~he public interest, hereby issues its complaint, stating its charges 111 that respect as follows:

P~RAGRAPH 1. The respondent, Norfolk Mattress Co., Inc., is a corporation, organized and existing under and by virtw~ of the laws of the State of Virginia, with its principal office and place of business located in the city of Norfolk, State of Virginia. Respondent is now, and for several years last past has been, engaged in the manufacture, sale, and :listribution of mattressesr ~Springs, pillows, and studio couches which it brands and labels as br. Ezera Storm," in commerce between and among the several States of the United States, and in the District of Columbia. Said respondent being engaged in the business, as aforesaid, caused an~ still causes said products, when sold, to be transported from its P~lncipal place of business in the city of Norfolk, in the State of Vlrginia, to purchasers thereof located in States of the United States iher than the State of Virginia, and in the District of Columbia. 1 or several years last past said respondent has maintained a course trade in the aforesaid produ~ts so manufactured, sold, and dist~lbuted by it in commerce between and among the several States of e United States, and in the District of Columbia. PAn, 2. In the course and conduct of its business, and for the pur- ~ose. of inducing the purchase of its products, the respondent has • . Urmshed advertising matter, such as catalogs and display cards, t<> ~~s retail trade, who in tum distribute such advertising matter among t e PUrchasing public generally. In all of such advertising litera- SUre respondent's products are collectively referred to as "Dr. Ezera form's Supreme Quality Sleep Products." The mattress is desig- ~a:ed as "Dr. Ezera Storm's Tru-Rest"; the springs as "Dr. Storm's thOll ~springs"; the couch as "Dr. Ezem Storm's Studio Couch"; and e Plllows as "Dr. Ezera Storm's Pillows."

Pan. 3. Through the use of the term "Dr." as part of the collective llan1e for its aforesaid products and as part of the trade name for each of said products, the respondent has represented, either directly 0 ~ through implication, that such products were made in accordance ~lth the desig'l of, or under the supervision cf, a doctor, and has furll. er represented, either directly or by implication, that such prodc1ts contain special or scientific features which are the result of medica ad . . . Vice or services. , ' Pan. 4. In truth and in fact the mattresses, springs, studio couchesr and pillows which are labeled, branded, and advertised with the Findings 35F.'f,C· n~me "Dr. Ezera Storm" were not made in accordance with the a:~ sign o£ or under the supervision of a doctor, and do not cont~tn special or scientific features which are the result of medical advtce or services. · · PAR. 5. The acts and practices of the respondent as herein detailed have a tendency and capacity to mislead its own retail customers,nnd also many consumer purchasers into the mistaken and erroneous belie£ that such products have been designed and constructed by doc· tors or others with a special or scientific lmowledge, and by reason thereof possess features not common to the ordinary mattressej springs, couches, and pillows. In consequence of such mistaken an erroneous belief, a substantial number of the purchasing public have purchased respondent's aforesaid products.

. PAR. 6. The aforesaid acts and wactices of the respondent ll~ herein alleged, are all to the prejudice and injury of the public, ant constitute unfair and deceptive acts and practices within the inten · and meaning of the Federal Trade Commission Act. REPORT, FINDINGS AS TO Tile FACTS, AND ORDER Pursuant to the provisions of the Federal Trade Commission _Act, the Federal Trade Commission on April 16, 1941, issued and subse· quently served its complaint in thi~ proceeding on respondent, N' or£ folk Mattress Co., Inc., a corporation, charging it with the use 0 f unfair and deceptive acts and pr~ctices in commerce in violation °d .the provisions of said act. After the issuance of said complaint an the filing of respondent's answer thereto, testimony, and other evide~ct in support of and in opposition to the allegations of the complalll were introduced before an examiner of the Commission theretofore duly designated by it, and said testimony and other evidence were duly recorded and filed in the office of the Commission. Thereafter, the proceeding regularly came on for final hearing before the Coj1ld mission on the said complaint, the answer thereto, testimony, an other evidence, report of the trial examiner and exceptions thereto{ and briefs in support of and in opposition to the complaint ( 0!a argument not having been requested); and the Commission, havtng duly considered the matter and being now fully advised in the prej1ld ises, finds that this proceeding is in the interest of the public an makes this its findings as to the facts and its conclusion drawn there· from.

FINDINGS AS TO THE FACTS PARAGRAPH 1. Respondent, Norfolk Mattress Co., Inc., is a c~rp~ ration, organized, existing, and doing business under and by Virtu . NORFOLK. MATTRESS CO., INC. 469 466 . Findings of the law of the State of Virginia, with its principal office and place of business in Norfolk, Va. Respondent is now, and for many years last past has been, engaged in the manufacture, sale and distribution of tnattresses, pillows, bedsprings, and studio couches which it. brands or labels "Dr. Ezera Storm" or "Dr. Ezera Storm's." . PAn. 2. Respondent has caused, and causes, the aforesaid products, "'hen sold, to be transported from its place of business in Norfolk, Va., to purchasers thereof located in States of the United States other than thel State of Virginia and in the District of Columbia, and respondent has maintained and maintains, a course of trade in said llro.ducts in commerce between and among the several States of the 1J· nited States and in the District of Columbia. PAR. 3. In the course and conduct of its aforesaid business, and for the purpose of inducing the purchase of its said products, respondent has. furnished advertising matter such as catalogs and display cards to. Its retail trade. which catalogs and display card are in turn• dis- !~1~Uted among members of the purchasing public. In such adver;d181~g literature respondent's products are collectively referred to, :Peslgnated, or described as "Dr. Ezera Storm's Supreme Quality Sleep "roducts" and are individually labeled, referred to, or described as t Dr. Ezera Storm" mattresses, "Dr. Ezera. Storm's Tru-Rest" mat- ~esses, "Dr. Ezera Storm's Sunset" mattresses, "Dr. Ezera Storm" Plllows, "Dr. Storm Coil Spring," and "Dr. Ezera Storm's" studio couches. , · In its advertising pamphlets and material respondent has used, and llses, statements such as:

ll l:>r, Ezera Storm Sleep Products are built for better sleep. They are honest 8;oducts, built to provide nerve-soothing, body-relaxing comfort from a health andpoint.. . • • • • • • t .E'ew people realize the tremendous importance of "good sleep" in relation 1~ llhysical and mental health. The four essentials of life, in the order of their Dortance are Air, Sleep, 'Vater and Food. ~len have gone 70 days without food, but without sleep, insanity comes in 11 a"e,... daysth and death in seven. The mattress, and its foundation, the bed spring, '!'h. e tools given to men to assist Nature in nightly rebuilding your body. In! e quality of sleep regulates the clearness with which you think, and deternes the efficiency with which you work .

• • • • • • • f;llon get correct back supp;rt, and good seating comfort with the Dr. Storm · eep Sofa. · • • • • • 470 FEDEE.AL TRADE COMMISSION DE.CISIONS Findings 35F.T.C· For twenty-seven years, Dr. Ezera Storm Sleep Products have represented maximum value to the purchaser, so in the Dr. Storm line you get not only the advdntages of products designed from a "health and family welfare" standpoint, but you also get these products at no premium in price over ordinary sleep equipment.

PAR. 4. There is not now, and never has been, a "Dr. Ezera StorJll" <>r a "Dr. Storm" who originated, designed, or supervised the constr~c· tion of respondent's said products or who furnished scientific advice or services in connection with the design or construction of respond· ent's products. The name "Dr. Ezera Storm" is merely a trade na~e coined by respondent corporation or its predecessors for use on or 111 connection with its aforesaid products, and neither the responde~t nor its predecessors, corporate or individual, knew or had in their employ or as a stockholder or other party in interest, any person bY the name of Dr. Ezera Storm. f C"rtain of the ticking used by respondent in the manufacture 0d some of its products is purchased from a textile manufacturer an i~ by that manufacturer treated by a process said to make it resistent to germ and bacteria growth, this process being one developed by a doctor connected with a third concern which apparently licenses textile manufacturers to use such process. No connection of any, doctor with the design or manufacture of respondent's products ha; been shown; and, except to the extent above stated, no connection ° any doct6r with any materials used by respondent in the manu£actur~ of its products has been shown. ' . PAn. 5. The respondent introduced the testimony of certain fur:nl· ture dealers, an interior decorator, and managers of apartments 0~ rooming houses (most of whom were and had been well acquainte with respondent and its business over a long period of years} to the general effect that the use by respondent of the name "Dr. Ezerll Storm" in its labels on and descriptions of its products did not xneo.ll to them that such products were designed or approved by a doctor, and that they considererl. the designation "Dr. Ezera Storm" merely as the trade name of respondent for its products. The respond~nt also made proffers of proof by some of its dealer witnesses (wl11ch proffers have been given full consideration in this proceeding) th:lt in the course of selling respondent's products to members of the con· suming public they had not found that the designation "Dr. • Ezer~ Storm" caused membei.'s of the purchasing public to believe thj. respondent's products were designed or approved by a~doctor. , The Commission finds, however, from the testimony of consuJlleJ' witnesses, that the various "Dr. Ezera Storm" and "Dr. Ezer!l. Storm's" labels on and designations of respondent's products have the capacity and tendency to, and do, in fact cause a substantial por· NORFOLK MATTRESS CO., INC. 471 466 Order tion of the purchasing public to believe that respondent's products have b~en designed, approved, or recoinmended by a doctor. In consequence of such mistaken and erroneous belief, engendered as aforesaid, a substantial number of members of the purchasing Pubhc have purchased respondent's said products. CONCLUSION The aforesaid acts and practices of respondent are all to the prej- Udice and injury of the public and constitute unfair and deceptive ~cts and practices in commerce within the intent and meaning of the .a.i ederal Trade Commission Act. ' ORDER TO CEASE AND DESIST .This proceeding having b~en heard by the Federal Trade Comllllssion ·-upmi-the complaint of the Commission, the answer of re- Spondent, testimony in support of and in opposition to the allegations ~f the complaint taken before an examiner of the Commission theret?fore. duly designated by_ it, report of the trial examiner and excep- .ions thereto, and briefs filed herein, and the Commission having made lt.s findings as to the facts and its conclusion that said respondent has "lola ted the provisions of the Federal Trade Commission Act: It i,'l ordered, That the respondent, Norfolk Mattress Co., Inc., a corporation, its officers, representatives, agents, and employees, di- ;ruy or through any corporate or other device, in connection with h18 offering for sale, sale, and distribution of mattresses, pillows, i edsprings, couches, and other products in commerce, as "commerce" 8 defined in the Federal Trade Commission Act, do forthwith cease and desist from using the word "Doctor," or the abbreviation "Dr.," ~r any simulation thereof, either alone or in connection with any other p .~rd or words, to designate, describe, or refer to any mattresses, 1 lows, bedsprings, couches or other products not designed, approved,0 tlr~l'ecomended. by a doctor; or otherwise representing in any manner.ha any product not designed, approved, or recommended by a doctor ; h;en designed, approved, or recommended by a doctor. tl t 'l8 further ordered, That respondent shall, within 60 days after i 18 service upon it of this order, file with the Commission a report .hn Writing setting forth in detail the manner and form in which it as complied with this order.

35F. T.C. Syllabus