Fur Information and Fashion Council, Inc. v. E. F. Timme & Son, Inc., 970

• Decision Date: 18 November 1974
• Docket Number: No. 970,D,970
• Parties: FUR INFORMATION AND FASHION COUNCIL, INC., et al., Plaintiffs-Appellants, v. E. F. TIMME & SON, INC., Defendant-Appellee. ocket 73-2687.
• Court: U.S. Court of Appeals — Second Circuit

Page 1048

501 F.2d 1048

183 U.S.P.Q. 129

FUR INFORMATION AND FASHION COUNCIL, INC., et al., Plaintiffs-Appellants, v. E. F. TIMME & SON, INC., Defendant-Appellee.

No. 970, Docket 73-2687.

United States Court of Appeals, Second Circuit.

Argued May 29, 1974.

Decided July 31, 1974, Certiorari Denied Nov. 18, 1974, See

95 S.Ct. 498.

Oliver P. Howes, Jr., New York City (Nims, Howes, Collison & Isner, New York City, and Kenneth R. Umans, New York City, of counsel), for plaintiffs-appellants.

Charles L. Trowbridge, New York City (Gifford, Woody, Carter & Hays, New York City, and Bondy & Schloss, New York City, and David E. Nierenberg, New York City, of counsel), for defendant-appellee.

Before MOORE and FEINBERG, Circuit Judges, and WEINFELD, ^* district judge.

MOORE, Circuit Judge:

Plaintiffs ¹ appeal from a final judgment and order dismissing their complaint and denying their motion for a preliminary injunction. ² There being no diversity of citizenship, jurisdiction was asserted under the Trademark Act of 1946 (the so-called Lanham Act), 15 U.S.C. 1051 et seq., Section 43(a), 15 U.S.C. 1125(a), of which contains the basis of, and prerequisites for, jurisdiction. In essence that section provides that any person who uses in connection with any goods any false representation, including words tending to falsely represent the same (such goods being entered into commerce) shall be liable in a civil action to any person damaged or likely to be damaged by 'any such false description or representation.' ³

The complaint stated the suit to be 'of a civil nature for unfair competition, and commercial disparagement.' The defendant, E. F. Timme & Son, Inc., a manufacturer 'of synthetic textile fabrics, some of which simulate in appearance the fur of wild and farm raised animals but which do not consist of or contain animal fur * * *' is charged with having 'broadcast nationally, advertisements of defendant's said goods which carried the false implication that buying defendant's products would save tigers and leopards from being killed for use of their fur in garments despite defendant's knowledge that the Endangered Species Conservation Act, 16 U.S.C. 668a-668c (668aa-668cc), protects tigers and leopards from being killed for such purposes.' (Complaint, par. 22). Additionally, plaintiffs assert an implication from these ads that 'plaintiffs and all those similarly situated are responsible for the illegal killing of said animals for commercial purposes.' (Complaint, par. 23). To bring the union employees into the 'similarly situated' category, the complaint charges that 'there will be a general loss of union jobs and depression of wages throughout the commercial fur industry' (Complaint, par. 26), i.e., if sales of the fur manufacturing industry are reduced.

The two television ads complained of are described in the trial court's opinion:

The Court (the District Court) viewed these two Ads. They are produced in color. The fact that 40% Of the New York market continues to view television in black and white with the significant motivation for the choice of leopard (with contrasting spots) and tiger (with stripes) over a monochromatic fur.

The Leopard Ad, sixty seconds in length, begins with color scenes of animals in their natural habitat, including hippopotami swimming, antelopes running in a pack and a leopard with her cub.

The leopard is then viewed through what are apparently the sights of a large firearm. The scene fades. A gunshot is heard. The scene shifts to a cocktail party ostensibly in the United States. A fashionably dressed woman admires the leopard coat of another. The voice of an unseen male speaks:

Man's Voice: There are too many women who want leopard coats in the world and too few leopards. Timme makes fake furs every bit as beautiful as the originals. We think people should wear our fake fur and leave the leopard coats where they belong, on leopards.

Woman: Buy me one before the jungle runs out of them.

Man's Voice: Timme. Makers of Timmetation Fake Furs, and fabrics for just about every thing else.

This is followed by a picture of examples of various other Timme fabrics used for upholstery and apparel.

The Tiger Ad, sixty seconds long, is to the same effect. A lovely girl appears in color next to a friendly and affectionate tiger. She says:

He (the tiger) is wearing a real tiger coat. I'm wearing a fake fur by Timme. Although it's virtually impossible to tell the difference, a Timme fur costs far less money. Perhaps even more important, it didn't cost a tiger his life. The beauty of a Timme fake is that you can wear a beautiful coat and he (the tiger) can keep his.

This is followed by the voice of an unseen male, naming Timme as a maker of fake furs and fabrics.

The trial judge then found:

Words are inadequate to describe the mordant effect of these Ads on the viewer. In the Leopard Ad, a woman of fashion makes an insensitive reference to the fact that leopards are threatened with extinction, and requests her escort (not shown on camera) to buy her one before it is too late. Her self-indulgent attitude and frivolous demeanor contrasts directly and unfavorably with the words and tone of the ecologist-announcer.

Persons who would wear natural tiger or leopard coats (and, by extension, all who would wear natural fur) are portrayed as anti-social, anti-environment, or otherwise in a bad light. The two-fold innuendo exists: (1) by selecting Timmetation fur over natural fur, a customer will save money and save the life of a fur bearing animal, and (2) that the American fur industry is responsible for the killing of endangered tigers and leopards (and, by extension, are criminals).

Notwithstanding these findings, the trial judge held that the complaint did not state a cause of action under Section 43(a) because the misrepresentations did not involve an inherent quality or false description of the defendant's own products. Alternatively, the judge ruled that the ads were protected by the First Amendment and that, in any event, the equities did not justify the award of preliminary injunctive relief.

At the outset, this court must observe that it disagrees with the trial court's findings of false implications and innuendoes. Since these findings consist primarily of inferences drawn from viewing the ads and since this court has also viewed them, the findings are subject not to the 'clearly erroneous' test but to the stricter standard of review applicable to interpretations of documentary evidence. See, e.g., United States ex rel. Lasky v. LaValle, 472 F.2d 960, 963 (2d Cir. 1973); Severi v. Seneca Coal & Iron Corp., 381 F.2d 482, 488 (2d Cir. 1967); Orvis v. Higgins, 180 F.2d 537, 539 (2d Cir.), cert. denied, 340 U.S. 810, 71 S.Ct. 37, 95 L.Ed. 595 (1950). Under this standard, the trial court's findings are erroneous and, accordingly, we set them aside. We are convinced that these ads carry no implications, false or otherwise, that plaintiffs, including their union employees, go about the country illegally killing tigers and leopards for commercial purposes. In fact, the court is prepared to take judicial notice that the numbers of tigers and leopards in this country is limited to zoological gardens and itinerant circuses. Equally unrealistic is the thought that a potential purchaser of one of defendant's imitation leopard coats makes the purchase with the thought that she (probably) is saving a leopard from being killed. To the contrary she knows that no real leopards are available-- hence, if her desires compel her to appear in spots, she must resort to such imitation as is available. Furthermore, a cloth imitation of any fur is far less expensive and many purchasers for this...