« AnteriorContinuar »
ent at any time ever had a contract of any kind with the Government of the United States. Our conclusion is that finding No. 6, like finding No. 2, is amply sustained by the evidence.
It is not necessary for us to comment upon the other findings of fact. It is enough to say that we have read all the testimony the Commission had before it, and it amply sustains all the findings the Commission made.
The Commission's order among other things requires the petitioners to cease and desist from publishing and circulating any printed matter wherein it is falsely stated that the United States Government or any department, branch, or agency thereof has adopted respondent's product, Sal-Tonik. It appears that for several months before the complaint herein was filed against them the petitioners had voluntarily ceased to use the word
, adopted" in their advertisements and circulars and inserted in lieu thereof the word "purchased.” Because of this voluntary discontinuance of the word "adopted" prior to the filing of the complaint it is urged that this part of the order to cease and desist is unjustifiable and erroneous.
Mr. Kerr lays it down as a rule in regard to bills to restrain the violation of trade-marks that the owner of a trade-mark, where the mark has been illegally taken by another, is not bound to rely upon his assurance or promises not to repeat the illegal appropriation of the mark, but is entitled to the protection of the court by injunction. Kerr on Injunctions, 4th ed. 350.
Mr. Nims, in his work on Unfair Competition, sec. 372, states that the fact that defendant has ceased to commit infringing acts is no reason why an injunction should not issue.
In Saxlehner v. Eisner, 147 Fed. 189, 191, which was brought for an infringement of a trade-mark, it appeared that all use of the infringing bottles had ceased three weeks before the suit was brought. This court, speaking through Judge Lacombe, said: “In view of the past conduct of defendants, complainant might fairly aver an apprehension that they would in some way continue the old infringement or concoct some new one, even though the company itself were enjoined. The circumstance that since that time they have not, in fact, infringed is not controlling." The injunction granted below was sustained.
It is to be observed, however, that this is not a suit to restrain the infringement of a patent or a trade-mark or copyright, but that it is a proceeding under the Federal Trade Commission act. The language of the act therefore must be considered Section 5 of the act declares that whenever the Commission shall have reason to believe that any such person, partnership
has been or is using any unfair method of competition
in commerce, and if it shall appear to the Commission that a proceeding by it in respect thereof would be to the interest of the public, it shall issue and serve upon such person, partnership, or corporation a complaint
In view of this language of the statute we are unable to say that the language of the order was used improvidently and was beyond the Commission's authority.
In Sears, Roebuck & Co. v. Federal Trade Commission,, 258 Fed. 307, 310, it was insisted as here that the injunctional order was improvidently issued because before the complaint was filed and hearing had, the petitioner had discontinued certain methods complained of. In that case, unlike this, the petitioner had stated in its answer that it had no intention of resuming them. The Circuit Court of Appeals for the Seventh Circuit, notwithstanding these facts, sustained the right of the Commission to make the injunctional order, and said: “No assurance is in sight that petitioner, if it could shake respondent's hand from its shoulder, would not continue its former course.
The testimony shows conclusively that the petitioners had been publishing advertising matter containing false and misleading statements and had used an unfair method of commerce, and we think the Commission was quite within its right in issuing the order in the form it did. In such cases the Commission must exercise its discretion in view of all the circumstances.
Before bringing this opinion to its conclusion we perhaps should refer to the fact that one of the petitioners, George L. Owens, moved the Commission to strike his name from the proceeding on the ground that he individually is not now and never was engaged in interstate commerce and never did any advertising of any kind individually. It is undoubtedly true that George L. Owens was not a necessary party to this proceeding. But the evidence shows that he is and has been since its organization the president or trustee and absolute manager of the Guarantee Veterinary Company. He has no right, therefore, to complain because he was made a party to the proceeding.
The order of the Commission is affirmed.
FEDERAL TRADE COMMISSION v. BALTIMORE
GRAIN CO. ET AL."
(District Court, District of Maryland. November 20,
1 TRADE-MARKS AND TRADE NAMES AND UNFAIR COMPETITION KEY
No. 801, New, VOL. 8A KEY-No. SERIES-SENATE RESOLU-
EXAMINE PAPERS. Senate Resolution No. 133 of December 22, 1921, directing the Federal Trade Commission to investigate certain phases of the marketing and exportation of grain and other farm products, gave the Commission no authority to examine the books and papers of nonpublic service corporations not already
given by law. 2. SEARCHES AND SEIZURES KEY No. 7- FEDERAL TRADE Com.
MISSION NOT AUTHORIZED TO EXAMINE PAPERS IN GENERAL
INVESTIGATION. In view of the prohibition of unreasonable searches and seizures, under which general warrants are forbidden, the Federal Trade Commission Act (Comp. St. Pars. 8836a-8836k) does not authorize the Commission, in a general investigation of a branch of trade not directed against any particular corporations, to examine the books and papers of nonpublic service corporations engaged in interstate commerce, but to authorize such examination the inquiry must be more or less definite and restricted in character, and if the statute does give such authority it goes beyond the powers of Congress.
(The syllabus is taken from 284 Fed. 886.) Mandamus petitions for writs by the Federal Trade Commission against the Baltimore Grain Company, against the H. C. Jones Company, Inc., and against the Hammond-Snyder Company, Inc. Petition denied.
Robert R. Carman, United States attorney, of Baltimore, Md., for plaintiff.
R. E. Lee Marshall, of Baltimore, Md., for defendants. Rose, District Judge:
In these cases the Federal Trade Commission seeks a mandamus to compel the respondents, each a corporation, the first two of Maryland and the last of Delaware, and each of them engaged in foreign and interstate, as well as intrastate, trade in grain, to permit the petitioner's agents to examine, inspect, and copy respondents' books of account, records, documents, correspondence, and paper writings relating to or bearing upon their business in interstate commerce, and all letters and telegrams passing between the respondents and the latters' jobber customers throughout the United States during the calendar year 1921.
1 Writ of error to Supreme Court allowed April 11, 1923.
The petitions say that the commission, on its own motion, determined to gather and compile information concerning, and to investigate from time to time, the organization, business, conduct, practice, and management of the respondents and to investigate and determine the facts of the relation of each of them to other corporations, individuals, associations, and partnerships. The petitions further represent that the commission is also acting in compliance with Resolution No. 133 of the Senate of the United States, passed December 22, 1921, directing it to investigate the margins between farm and export prices; the freight and other costs of handling; the profits or losses of the principal exporting firms and corporations and their subsidiary or allied companies and firms; all the facts concerning market manipulations, if any, in connection with large export transactions or otherwise; the organization, ownership, control, interrelationship, foreign subsidiaries, agents, or connections of the concerns engaged in the export of grain, including the extent of their control of the facilities used by them; the organization, methods of operation and agents used by farm buyers of grain in this country; and other data affecting the demand for a foreign disposition movement and use of American exported grain and report its findings and recommendations thereon as promptly as the various phases of the work are concluded.
In the case of the Federal Trade Commission v. P. Lorillard Company,' Judge Manton, sitting in the District Court for the Southern District of New York, has recently elaborately reviewed the statutes and authorities defining or limiting the power of the Federal Trade Commission to compel private corporations to submit their papers to its examination. In that case, the petition of the Commission, which was denied, set forth facts legally indistinguishable from those alleged in the one at bar. Here, as there, the resolution of the Senate conferred upon the Commission no authority not already given by law. See United States v. Louisville & Nashville R. R., 236 U. S. 329.
The Federal Trade Commission act does empower the Commission, upon the direction of the President or either House of Congress, “to investigate and report the facts relating to any alleged violation of the anti
1 283 Fed. 999.
trust acts by any corporation.” The resolution cited in the instant case does not suggest any breach of these acts. The question here is whether the statute creating the commission entitles it to the inspection for which it asks, and if so, whether the act in that respect is valid.
Paragraph A of section 6 of the statute authorizes the commission “ To gather and compile information concerning, and to investigate from time to time the organization, business, conduct, practices, and management of any corporation engaged in commerce,
and its relation to other corporations and to individuals, associations, and partnerships."
Paragraph H provides that the commission may, upon its own motion, “investigate, from time to time, trade conditions in and with foreign countries where associations, combinations, or practices of manufacturers, merchants, or traders, or other conditions, may affect the foreign trade of the United States and to report to Congress thereon.
*% Section 9 declares “ That for the purpose of this act, the commission, or its duly authorized agent or agents, shall at all reasonable times have access to, for the purposes of examination and the right to copy, any documentary evidence of any corporation being investigated or proceeded against.
The measure originated in the House of Representatives, and the committee which reported it was familiar with what the Supreme Court had said in Harriman v. Interstate Commerce Commission, 211 U S. 407, and it said that in order that the proposed Trade Commission “ may have powers of subpoena and production of books and papers the language " of the bill has been expressly made broad enough to permit a full exercise of that power in connection with any kind of investigation which may be undertaken." (Report of Committee on Interstate and Foreign Commerce, No. 533, 63d Congress, 2d session.)
The Senate Committee on Interstate Commerce, while recognizing that in the conduct of such special investigations as the commission may deem necessary it is indispensable that it should have extensive powers of inquiry with the right to subpæna witnesses, and require the production of books and papers,” concluded that those conferred upon it were practically the same as were then possessed by the Interstate Commerce Commission and by the Bureau of Corporations. (Report Senate Committee on Interstate Commerce, No. 597, 63d Congress, 2d session.)
The legislative history of the act may suggest that Congress did not intend that the powers of the commission to investigate should be confined to cases in which a complaint had been made, or might have been, but there is no reason to suppose that Congress thought that in