E. I. Du Pont De Nemours & Co. v. Kaufman & Chernick, Inc.
| Decision Date | 11 March 1958 |
| Citation | 148 N.E.2d 634,337 Mass. 216 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | E. I. DU PONT DE NEMOURS & CO., Inc. v. KAUFMAN & CHERNICK, Inc. |
Warren F. Farr, Boston (A. Lane McGovern, Boston, with him, for plaintiff.
John W. McIntyre, Attleboro (Edmund F. Henry, Attleboro, with him), for defendant.
Before WILKINS, C. J., and RONAN, SPALDING, WILLIAMS, COUNIHAN and WHITTEMORE, JJ.
This is a suit brought in the Superior Court under the fair trade law, G.L. (Ter.Ed.) c. 93, §§ 14A-14D, to enjoin the defendant from selling at retail a trade-marked product of the plaintiff at a price lower than the minimum retail price stipulated in fair trade contracts by the plaintiff. The suit was presented to a judge upon an 'Agreed Statement of all the Material Facts,' and the judge at the request of the parties reported the suit to this court, without decision.
From the statement of agreed facts it appears that the plaintiff is the manufacturer of anti-freeze products known as 'Zerone' and 'Zerex,' which are sold in containers bearing their respective registered trade marks. These products are sold throughout this Commonwealth in fair and open competition with similar products of others. The plaintiff has established a valuable good will for its products and for the trade marks under which they are manufactured and sold. To protect its trade marks and good will, it entered into contracts under our fair trade law with many retailers in Massachusetts under which it has stipulated the minimum retail prices at which such products may be sold. The minimum retail price for 'Zerex' was fixed at $3.25 a gallon.
The defendant is engaged in selling at retail, in its stores in Massachusetts, automotive products, including 'Zerex.' In September, 1955, the plaintiff notified the defendant of the existence of fair trade contracts with certain other retailers and of the minimum retail prices stipulated thereunder so that the defendant had full knowledge thereof. Despite this the defendant at various times and places in September and October, 1955, advertised in newspapers of wide circulation that upon the purchase of an automobile tire at a specified price the purchaser would receive a one-gallon can of 'Zerex' 'free' or for 'no charge.' The following is a copy of an advertisement which the defendant caused to be published:
"Free Zerex Non-Evaporating Anti-Freeze
Dupont 1 Gallon Factory Sealed Can
Nationally advertised Anti-Freeze
with each
Goodyear 'Surburbanite' Mud & Snow New Treads
6.70 x 15 Reg. $15.20
1 Gal. Zerex Reg. 3.25
-----------
Total Value $18.45
Both For Only $11.95
600 x 16--$10.95"
Pursuant to such advertisements the defendant during a two-weeks period in September, 1955, and during a one-week period on October, 1955, delivered and transferred a one-gallon can of 'Zerex' to each purchaser of a tire of the type advertised. The following is a copy of the sales slip given to such purchaser:
"1 600 x 16 Suburbanite Tire $10.95
1 Old Casing 2.50
-------
$13.45
1 Gal. Zerex N. C."
Another slip for a sale made by the defendant on October 27, 1955, reads in part:
"1 Firestone Tire $14.15
1 Can Zerex N. C."
$2.50 Old Casing
---------
$14.15"
In connection with its bookkeeping system certain of the defendant's sales were summarized in a daily price change report which indicated the usual prices at which its merchandise was sold together with any differences in actual sales prices. This report indicates that during the periods complained of the regular sales price of 'Zerex' was $3.25 a gallon but that it was actually sold at the figure 'O,' a difference in price of $3.25. The letters on the sales slips meant 'No Charge.'
None of the transactions complained of came within the specific exemptions allowed in §§ 14A and 14C of the fair trade law. The plaintiff has waived any claim for money damage and seeks only to have the defendant restrained from continuing to do business in the manner complained of, which it has threatened to do.
The pertinent part of the fair trade law is § 14B, St.1939, c. 313, which reads: ...
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