Federal Trade Commission v. Klesner, No. 8

CourtUnited States Supreme Court
Writing for the CourtBRANDEIS
Citation68 A.L.R. 838,50 S.Ct. 1,74 L.Ed. 138,280 U.S. 19
PartiesFEDERAL TRADE COMMISSION v. KLESNER
Decision Date14 October 1929
Docket NumberNo. 8

280 U.S. 19
50 S.Ct. 1
74 L.Ed. 138
FEDERAL TRADE COMMISSION

v.

KLESNER.

No. 8.
Argued and Submitted April 10, 1929.
Decided Oct. 14, 1929.

[Syllabus from pages 19-21 intentionally omitted]

Page 21

The Attorney General and Mr. Adrien F. Busick, of Washington, D. C., for petitioner.

Page 22

Mr. Clarence R. Ahalt, of Washington, D. C., for respondent.

Mr. Justice BRANDEIS delivered the opinion of the Court.

This case is here on certiorari, for the second time. It was brought in the Court of Appeals of the District of Columbia by the Federal Trade Commission under section 5 of the Act of September 26, 1914, c. 311, 38 Stat. 717, 719 (15 USCA § 45), to enforce an order entered by it. The order directs Klesner, an interior decorator, who does business in Washington under the name of Hooper & Klesner, to 'cease and desist from using the words 'Shade Shop' standing alone or in conjunction with other words as an identification of the business conducted by him, in any manner of advertisement, signs, stationery, telephone, or business directories, trade lists or otherwise.' That court dismissed the suit on the ground that, unlike United States Circuit Courts of Appeals, it lacked jurisdiction to enforce orders of the Federal Trade Commission. 6 F. (2d) 701, 56 App. D. C. 3. On the first certiorari, we reversed the decree and directed that the cause be remanded for further proceedings. Federal Trade Commission v. Klesner, 274 U. S. 145, 47 S. Ct. 557, 71 L. Ed. 972. Then the case was reargued before the Court of Appeals, on the pleadings and a transcript of the record before the

Page 23

Commission, and was dismissed on the merits, with costs. 25 F.(2d) 524, 58 App. D. C. 100, This second writ of certiorari was thereupon granted. 278 U. S. 591, 49 S. Ct. 30, 73 L. Ed. 524. We are of opinion that the decree of the Court of Appeals should be affirmed-not on the merits, but upon the ground that the filing of the complaint before the Commission was not in the public interest.

The conduct which the Commission held to be an unfair method of competition practiced within the District had been persisted in by Klesner ever since December, 1915. The complaint before the Commission was filed on December 18, 1920. The order sought to be enforced was entered June 23, 1922. This suit was begun on May 13, 1924. The evidence before the Commission, which occupies 394 pages of the printed record in this court, is conflicting only to a small extent. The findings of the Commission are in substance as follows:

Sammons has for many years done business in Washington as maker and seller of window shades, under the name of 'The Shade Shop.' Prior to 1914, that name had, by long use, come to signify to the buying public of the District the business of Sammons. The concern known as Hooper & Klesner has also been in business in Washington for many years. Prior to 1915, its trade had consisted mainly of painting and of selling and hanging wallpaper. It had dealt also, to some extent, in window shades, taking orders which it had executed either by Sammons or some other maker of window shades. In 1914, Hooper & Klesner leased a new store pursuant to an arrangement with Sammons, and sublet to him a part of it. There Sammons continued his business of making and selling window shades as an independent concern under the name of 'The Shade Shop.' His gross sales there were at the rate of $60,000 a year. On a Sunday in November, 1915, he removed all his effects from those

Page 24

premises and established his business in another building four doors away.

Sammons' removal was in confessed violation of his agreement with Hooper & Klesner. An acrimonious controversy ensued. Threats of personal violence led to Sammons having Klesner arrested, and this to bitter animosity. Out of spite to Sammons, and with the purpose and intent of injuring him and getting his trade, Hooper & Klesner decided to conduct on its own account, in the premises which Sammons had vacated, the business of making and selling window shades. It placed upon its show windows, and also upon its letterheads and billheads, the words 'Shade Shop,' and listed its business in the local telephone directory as 'Shade Shop, Hooper & Klesner' and as 'Shade Shop.' A like sign was placed on its delivery trucks. This use by Hooper & Klesner of the term 'Shade Shop' has caused, and is causing, 'confusion to the window-shade purchasing public throughout the District,' and, on certain occasions, customers who entered Hooper & Klesner's shop were deceived by employees, being led to believe that it was Sammons.' Meanwhile, Klesner had become the sole owner of the business.

Such were the findings of the Commission. The Court of Appeals concluded that there was no showing either that Klesner was attempting to dispose of his goods under the pretense that they were the goods of Sammons, or that he was attempting to deceive or entice any of Sammons' customers; that the evidence introduced to show deception went no further than that some of the public may have purchased from Klesner under a mistaken belief that they were dealing with Sammons; that the words 'Shade Shop' were being used by Klesner always in connection with the words Hooper & Klesner; and that the term 'Shade Shop,' as used by Klesner, merely indicated

Page 25

that his store was a place where window shades were made and sold. The Court of Appeals ruled that these words, being descriptive of a trade or business, were incapable of exclusive appropriation as a legal trade-mark or trade-name, and that there was nothing in the facts to justify the charge of unfair competition. It, therefore, dismissed the suit on the merits, the ground of decision being that there was a lack of those facts which, in a court of law or of equity, are essential to the granting of relief for alleged acts of unfair competition.

We need not decide whether the Court of Appeals was justified in all of its assumptions of fact or in its conclusions on matters of law. For we are of opinion that the decree should be affirmed on a preliminary ground which made it unnecessary for that court to enquire into the merits. Section 5 of the Federal Trade Commission Act does not provide private persons with an administrative remedy for private wrongs. The formal complaint is brought in the Commission's name; the prosecution is wholly that of the government; and it bears the entire expense of the prosecution. A person who deems himself aggrieved by the use of an unfair method of competition is not given the right to institute before the Commission a complaint against the alleged wrongdoer. Nor may the Commission authorize him to do so. He may of course bring the matter to...

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127 practice notes
  • Texas v. United States, CIVIL NO. B-14-254
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • February 16, 2015
    ...its action is more conducive to review "to determine whether the agency exceeded its statutory powers." Id. (citing FTC v. Klesner, 280 U.S. 19 (1929)).Page 85 Lastly, the Heckler Court compared agency non-enforcement decisions to the exercise of prosecutorial discretion in the criminal con......
  • Texas v. United States, Civil No. B–14–254.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • February 16, 2015
    ...its action is more conducive to review “to determine whether the agency exceeded its statutory powers.” Id. (citing FTC v. Klesner, 280 U.S. 19, 50 S.Ct. 1, 74 L.Ed. 138 (1929) ).Lastly, the Heckler Court compared agency non-enforcement decisions to the exercise of prosecutorial discretion ......
  • North American Airlines v. Civil Aeronautics Board, No. 12041.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 23, 1955
    ...Commission Act does not provide private persons with an administrative remedy for private wrongs." Federal Trade Comm. v. Klesner, 1929, 280 U.S. 19, 25, 50 S.Ct. 1, 3, 74 L.Ed. 138. "In determining whether a proposed proceeding will be in the public interest the Commission exercises a broa......
  • Dunlop v. Bachowski 8212 466, No. 74
    • United States
    • United States Supreme Court
    • June 2, 1975
    ...S.Ct. 903, 912, 17 L.Ed.2d 842 (1967), and in other civil areas, The Confiscation Cases, 7 Wall. 454, 19 L.Ed. 196 (1869); FTC v. Klesner, 280 U.S. 19, 25, 50 S.Ct. 1, 2, 74 L.Ed. 138 (1929). The Court of Appeals sought to distinguish this line of cases on the grounds that it involved 'vind......
  • Request a trial to view additional results
127 cases
  • Texas v. United States, CIVIL NO. B-14-254
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • February 16, 2015
    ...its action is more conducive to review "to determine whether the agency exceeded its statutory powers." Id. (citing FTC v. Klesner, 280 U.S. 19 (1929)).Page 85 Lastly, the Heckler Court compared agency non-enforcement decisions to the exercise of prosecutorial discretion in the criminal con......
  • Texas v. United States, Civil No. B–14–254.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • February 16, 2015
    ...its action is more conducive to review “to determine whether the agency exceeded its statutory powers.” Id. (citing FTC v. Klesner, 280 U.S. 19, 50 S.Ct. 1, 74 L.Ed. 138 (1929) ).Lastly, the Heckler Court compared agency non-enforcement decisions to the exercise of prosecutorial discretion ......
  • North American Airlines v. Civil Aeronautics Board, No. 12041.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 23, 1955
    ...Commission Act does not provide private persons with an administrative remedy for private wrongs." Federal Trade Comm. v. Klesner, 1929, 280 U.S. 19, 25, 50 S.Ct. 1, 3, 74 L.Ed. 138. "In determining whether a proposed proceeding will be in the public interest the Commission exercises a broa......
  • Dunlop v. Bachowski 8212 466, No. 74
    • United States
    • United States Supreme Court
    • June 2, 1975
    ...S.Ct. 903, 912, 17 L.Ed.2d 842 (1967), and in other civil areas, The Confiscation Cases, 7 Wall. 454, 19 L.Ed. 196 (1869); FTC v. Klesner, 280 U.S. 19, 25, 50 S.Ct. 1, 2, 74 L.Ed. 138 (1929). The Court of Appeals sought to distinguish this line of cases on the grounds that it involved 'vind......
  • Request a trial to view additional results

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