Federal Trade Commission v. Hires Turner Glass Co.
| Decision Date | 03 February 1936 |
| Docket Number | No. 5591.,5591. |
| Citation | 81 F.2d 362 |
| Parties | FEDERAL TRADE COMMISSION v. HIRES TURNER GLASS CO. |
| Court | U.S. Court of Appeals — Third Circuit |
Robert E. Healy, Harry D. Michael. and Martin A. Morrison, all of Washington. D. C., for petitioner.
Leon Edelson, of Philadelphia, Pa., for respondent.
Before WOOLLEY, DAVIS, and THOMPSON, Circuit Judges.
The Federal Trade Commission, the petitioner, charged Hires Turner Glass Company, the respondent, with unfair competition in interstate commerce in violation of section 5 of the Federal Trade Commission Act (15 USCA § 45) and issued the following cease and desist order:
"* * * It is ordered that respondent, Hires Turner Glass Company, a corporation, its officers, directors, agents, representatives, servants, and employees in connection with the sale, offering for sale, or distribution in interstate commerce, of mirrors having thereon a protective coating consisting of a mixture of shellac and powdered copper, cease and desist from designating the same as `copper-back' mirrors, `copper-backed' mirrors, mirrors `backed with copper,' or by other word, words, or expression of the same meaning or like import. * * *"
The respondent refused to comply with this order. The petitioner thereupon filed an application for an enforcement order in this court. The respondent contends that there is no evidence that the terms "copperback," "copper-backed," or "backed with copper" are not properly descriptive of its mirrors; or that trade is diverted to the respondent because of its use of the prohibited terms; or that such use tends to deceive the trade and purchasing public.
In approaching these issues, we bear in mind the admonition in Federal Trade Commission v. Algoma Lumber Co., 291 U. S. 67, 73, 54 S. Ct. 315, 318, 78 L. Ed. 655, where the Supreme Court said:
What facts did the petitioner find? Are these facts supported by testimony? We summarize the findings of fact:
The respondent is a Pennsylvania corporation engaged in the manufacture of mirrors and in their sale in interstate commerce. In 1930 the respondent began to manufacture in commercial quantities and to sell in interstate commerce mirrors having a protective coating or backing consisting of a mixture of shellac and powdered copper. The mixture was applied by brush or spray either immediately next to the reflecting medium or separated therefrom by an intervening coating of ordinary mirror-backing paint, in accordance with a process owned by the Peacock Laboratories, Inc. The respondent was the first licensee of the Peacock Laboratories, Inc., to advertise and sell mirrors as "copper-back," "copper-backed," and "backed with copper," when prepared by the above process. The same terminology was used by the respondent, its officers, agents, and representatives, in letters, invoices, communications, and conversations with the trade. Prior to the respondent's use of this process, those terms had acquired a fixed meaning in the trade and signified mirrors backed with a solid sheath or film of copper deposited upon the reflecting medium by an electrolytic or electro-plating process. The mixture of shellac and powdered copper does not form a solid metallic copper coating or film. The metallic element is not continuous, nor are the particles of copper in metallic contact, since each particle of copper is surrounded by a film of shellac and no part of the copper is adherent to or in metallic contact with the reflecting medium. The respondent's type of mirror sells for slightly more than ordinary mirrors and for considerably less than electrolytic copper-back mirrors, since its manufacture does not require special equipment. The use of the prohibited terms, when applied to the respondent's mirrors, has a tendency and capacity to confuse, mislead, and deceive the trade and public and to divert trade to the respondent.
The following is a summary of the testimony upon which the petitioner based its findings:
Electrolytic copper-back mirrors had been known since 1858 and had been imported in large quantities from England, France, Belgium, and Holland from 1900 until the World War and...
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