Eastman Kodak Co. v. Federal Trade Commission, 13
| Decision Date | 03 March 1947 |
| Docket Number | Docket 19575.,No. 13,13 |
| Citation | 158 F.2d 592 |
| Parties | EASTMAN KODAK CO. v. FEDERAL TRADE COMMISSION. |
| Court | U.S. Court of Appeals — Second Circuit |
Nixon, Hargrave, Middleton and Devans, of Rochester, N. Y. (T. Carl Nixon, and Arthur L. Stern, both of Rochester, N. Y., and Thomas Kiernan, of New York City, of counsel), for petitioner.
W. T. Kelley, Chief Counsel, Walter B. Wooden, Assistant Chief Counsel, and Daniel J. Murphy, Sp. Atty., all of Washington, D. C., for respondent.
Isaac W. Digges, of New York City, Atty. for American Fair Trade Council, Inc., amicus curiæ.
Before SWAN, CLARK, and FRANK, Circuit Judges.
Writ of Certiorari Denied March 3, 1947. See 67 S.Ct. 869.
The petitioner, Eastman Kodak Company, manufactures and sells in interstate commerce under the trade name "Kodachrome," photographic film for the taking of still and motion pictures in color. Another of its products is Magazine Cine-Kodak Film, both black and white and Kodachrome, packaged in a magazine which fits exclusively the patent protected cameras of the petitioner or its licensees. With respect to both Kodachrome and Magazine Film the petitioner has adopted a resale price maintenance policy to control the prices at which retail dealers may sell these commodities. The order of the Commission which the petitioner seeks to have set aside directs that the petitioner desist from entering into or continuing in operation any contract with its dealer-customers providing that Kodachrome Film or Magazine Film is not to be advertised, offered for sale or sold by such dealer-customers at prices less than those specified by the petitioner. The order also provides that if conditions later change so that there are other commodities of the same general class produced or distributed by others which are sold in free and open competition with the petitioner's Kodachrome or Magazine Film, then the Commission will, upon proper showing by the petitioner, reconsider the terms of its order in the light of such new conditions.
The Miller-Tydings amendment to section 1 of the Sherman Act, 15 U.S.C.A. § 1, excepts from the prohibitions of the statute resale price fixing agreements for a commodity sold under the producer's trade-mark, brand or name, provided such commodity "Is in free and open competition with commodities of the same general class produced or distributed by others," and provided agreements "of that description" are lawful as applied to intrastate transactions under the law of the state within which the resale is to be made. The Commission found as a fact that the petitioner's Kodachrome Film is not in the same general class as and is not in free and open competition with black and white film and that a purchaser wishing to take photographs or moving pictures in natural color is required to purchase film for this purpose solely from the petitioner. It further found that the petitioner's Magazine Cine-Kodak Film, both black and white and Kodachrome, is not sold in free and open competition with commodities of the same general class; that petitioner's Magazine Film is the only film on the market that can be used in the petitioner's Magazine Cine-Kodak Cameras, the Bell & Howell Magazine Cameras and the Perfex Magazine Cameras; and that the owners and...
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