unlike "automatic" washing machines or dishwashers, cannot be turned on and left to operate by themselves. (c) In any event, the industry asserts that terms such as "automatic" may properly be used with reference to a number of attachments or components of sewing machines, which may be attached to or built in such machines to automatically perform specified operations. It would appear that insofar as such attachments or components, after activation and by self-operation, will perform their function or cycle of operation without manual intervention, they may be described as "automatic": Provided, The descriptive word or term used does not imply that the entire machine is automatic. § 401.2 Deceptive nature of the claims. Many consumers, including the less sophisticated, paying substantial sums which may be up to $395 and more for a sewing machine, by the use of the term "automatic," as well as illustrations and depictions indicative of automaticity, are led in many instances to believe that merely by the twist of a dial or the flick of a lever they will be able to easily perform complicated sewing operations. In short, they are given the impression that the machines so described or depicted are simple and easy to use because they are self-operating and require no manual intervention. This is deceptive. In fact, the machines are not self-operating and are not necessarily simple and easy to use. Prerequisite to successful operation of such machines for certain uses is a considerable degree of manual dexterity and sewing skill in which many such consumers are frequently deficient. Accordingly, the use of such terms, words, illustrations, and depictions has the capacity and tendency to mislead and deceive the purchasing public. § 401.3 rule. Arguments in opposition to the (a) Sewing machine manufacturers and distributors point to the long-standing use of such phrases as "automatic zig-zag sewing machine" to maintain that they have acquired a secondary meaning to the purchasing public. Because of this secondary meaning, it is argued, consumers are not deceived into believing that a machine described by such terms as "automatic zig-zag sewing machine" would sew by itself, after activation, without human intervention. Absent deception or injury to the public, it is stated, the promulgation of a Trade Regulation Rule would be beyond the power and authority of the Federal Trade Commission and would engender more confusion than benefit to consumers. (b) Neither the record nor other facts of which the Commission has knowledge support the contention that a secondary meaning has been established for "automatic zig-zag sewing machine” or similar terms connoting automatism. At best, only certain functions or operations of such machines are possibly automatic. There is also substantial evidence in the record that purchasers were deceived and misled as to the performing ability of so-called "automatic" sewing machines, to the extent that even some of the functions described as automatic required considerably more skill and dexterity to operate than consumers believed would be necessary. (c) In the event of future product development, provision is made for amendment of the rule in this part or for other appropriate action. (a) On the basis of the foregoing, the Commission concludes that the practice of representing or describing household electric sewing machines as "automatic," "fully automatic," "automatic zig-zag sewing machine," or by other words, terms, illustrations, or depictions indicative of automaticity, has the capacity and tendency to mislead and deceive purchasers and prospective purchasers and to divert business from competitors who do not so describe their products. The Commission further concludes that this practice is violative of section 5 of the Federal Trade Commission Act, and that the public interest therein is substantial. (b) Accordingly, for the purpose of preventing such practice, the Commission hereby promulgates, as a Trade Regulation Rule, its conclusions and determination that in connection with the sale of household electric sewing machines in commerce, as "commerce" is defined in the Federal Trade Commission Act, it is an unfair method of competition and an unfair or deceptive act or practice to: (1) Use the word "automatic" or any other word or term of similar import to describe a household electric sewing machine either in its entirety or as to its overall function or operation, or use any illustration or depiction which represents that such a machine is automatic in its entirety or as to its overall function or operation. Examples of terms prohibited by the rule in this part are: Automatic sewing machine. Automatic zig-zag sewing machine. Sews automatically. Automatic straight stitcher. I (2) Use the word "automatic" or any Automatic buttonhole stitch attachment. § 401.5 Future product improvement. In the event any person develops a household electric sewing machine which he believes is in fact automatic in that it will sew by itself, after activation, without human intervention, he may apply to the Commission for an amendment of the rule in this part or for other appropriate relief. The application shall be filed with the Secretary, Federal Trade Commission, and be accompanied by a full report of the data upon which the applicant relies to substantiate his claim that the sewing machine is automatic. Commission will give public notice of the application and afford interested persons an opportunity to submit written data, views, or arguments. The Commission in its discretion shall also order such further proceedings as it deems to be necessary. If the Commission determines that the applicant's claim has been substantiated it will issue an appropriate order amending the rule in this part or The § 402.2 Trade and public understanding of "binocular." The record in this proceeding shows that neither the trade nor the consuming public has a clear understanding of the meaning of the term "binocular." Some members of the trade expressed the view that a "binocular" is any two-tubed viewing instrument, whether prismatic or nonprismatic, while others thought that the word "binocular" meant a fully prismatic instrument only. Although the record does not include any direct expression from consumers as to their understanding of the word, members of the trade and others have furnished statements based on their experience with consumer purchasers. These statements indicate that in the minds of many consumers a binocular is a viewing instrument which is fully prismatic. There is ample justification for the conclusion that a substantial portion of the consuming public understands an instru ment described as a binocular to be a fully prismatic instrument. § 402.3 Deceptive appearance of instruments having bulges. Prismatic binoculars characteristically have a bulge on each tube which houses or covers the prisms. Some nonpris matic and partially prismatic instruments, however, are made with bulges which give them the appearance of prismatic binoculars. By reason of such bulge construction, consumer purchasers are led to believe that nonprismatic instruments are prismatic unless there is adequate disclosure that they are nonprismatic or only partially prismatic. § 402.4 Use of "binocular” with qualifi cation. Many members of the trade and others have urged that the word "binocular” not be barred completely as descriptive of nonprismatic instruments, but that its use be permitted with appropriate qualification. The Commission has given careful consideration to the question of whether a remedy less drastic than excision would suffice. Upon consideration of the entire matter, the Commission has concluded that the deception would be removed and the public interest fully served if the word "binocular" were clearly qualified to disclose the fact that the instrument contains no prisms or is only partially prismatic. § 402.5 The rule. (a) On the basis of the foregoing, the Commission concludes that in connection with the sale of nonprismatic and combination prism - mirror two-tube hand-held observation instruments the practices of (1) unqualifiedly describing such instruments as "binocular" or "binoculars," and (2) failing to disclose that instruments having bulges on the tubes which simulate prismatic instruments are not prismatic instruments or do not contain complete prism systems, as the case may be, have the capacity and tendency to mislead and deceive purchasers and prospective purchasers and to divert business from competitors who truthfully and properly describe and label such products. The Commission further concludes that these practices are violative of section 5 of the Federal Trade Commission Act, and that the public interest in preventing their use is specific and substantial. (b) Accordingly, for the purpose of preventing such unlawful practices, the Commission hereby promulgates, as a trade regulation rule, its conclusions and determination that in connection with the sale of nonprismatic or combination mirror-prismatic two-tube hand-held observation instruments in commerce as "commerce" is defined in the Federa Trade Commission Act, it constitutes an unfair method of competition and an unfair or deceptive act or practice to: (1) Represent in any manner tha nonprismatic instruments are prismatic or that combination mirror-prismatic instruments contain complete prismatic systems; or (2) Describe such instruments as “binocular" or "binoculars" unless clear and conspicuous disclosure is made that nonprismatic instruments do not contain prisms or that combination mirrorprismatic instruments do not contain complete prismatic systems; or (3) Fail clearly and conspicuously to disclose the fact that nonprismatic instruments do not contain prisms or that combination mirror-prismatic instruments do not contain complete prismatic systems, when such instruments have bulges on the tubes which create the characteristic appearance of prismatic binoculars. (c) The disclosures required by this section shall be clearly and conspicuously made in all advertising and on the product and be of such permanence as to remain legible until received by the consumer purchaser. (d) Examples of terms acceptable as descriptive of such products under this section are: (1) "Binocular" may be used without qualification to describe any product which is fully prismatic. (2) "Binocular-Nonprismatic" may be used to describe any nonprismatic product coming within the purview of this section. (3) "Binocular-Mirror-prismatic" or "Binocular-Partially Prismatic" may be used to describe products which have combination mirror and prism systems. (4) "Binocular-Nonprismatic Mirror" may be used to describe a nonprismatic product having a mirror reflecting system. (5) “Field Glasses" may be used to describe straight tube nonprismatic products. (a) The terms "leakproof," "guaranteed leakproof" and other words and terms of similar import as descriptive of dry cell batteries are currently used in labeling and advertising in the sale of such batteries in commerce, as "commerce" is defined in the Federal Trade Commission Act. Batteries so described are sold for use in a great number and variety of devices which employ batteries as functional component parts. (b) Despite efforts by dry cell battery manufacturers to eliminate electrolyte leakage, no dry cell batteries currently marketed and distributed are proof against such leakage. This is evinced by, among other things, statements and statistics furnished by industry members, experts in the field of electrical power sources, marketers of battery operated devices and by consumers. Moreover, the fact that battery leakage does cause extensive damage to devices in which batteries are employed, and to other articles, such as carpets, clothing and furniture has not been disputed. (c) Although battery leakage may occur while a battery is being discharged, it is more likely to occur after the useful life of the battery has been expended. Consequently, damage from leakage often results from the failure of the user to remove the battery from a device after it has been discharged. Leakage and damage therefrom are also caused or accelerated by continuous drainage of the current or by the use of a battery in a device which may short out or overheat the battery. Climatic conditions, such as heat or high humidity, may also induce battery leakage. Each year literally thousands of incidents of actual damage resulting from leakage of batteries described as "leakproof" and "guaranteed leakproof" are brought to the attention of battery manufacturers by consumers. Under these circumstances, it is concluded that battery leakage and damage therefrom occurs under those conditions of use to which consumers ordinarily subject dry cell batteries. The use of the terms "leakproof" and "guaranteed leakproof" and words and representations of similar import in the labeling and advertising of dry cell batteries constitutes a representation that the batteries so described will not leak, and has the capacity and tendency to lead purchasers to believe that there is no danger of leakage or damage resulting therefrom when batteries so described are used in any battery-powered device regardless of the adequacy of design of such device, the duration of use, or other conditions of usage which contribute to electrolyte leakage. Moreover, the use of such terms has the capacity and tendency to lead purchasers to believe that there is no need for periodic inspection of batteries so described. § 403.3 Arguments in opposition to the rule. (a) Many marketers offer a guarantee against damage resulting from leakage. The terms of the guarantee are usually set forth on the battery, and the obligation assumed by most marketers thereunder is to replace batteries and repair or replace any flashlights damaged by leakage. Some marketers voluntarily extend this guarantee to cover the repair or replacement of other devices or property damaged by leakage. It has been argued in opposition to the adoption of the rule that the consumer is adequately protected by scrupulous performance under such guarantees, and that marketers offering these benefits are entitled to call consumer attention thereto by the use of unequivocal "leakproof" claims. This argument is rejected since it is clear that the offering of guarantees and even voluntary performance by the guarantor beyond the scope of the guarantee cannot justify claims which attribute to a product qualities which it does not in fact possess. As to the contention that to disallow the use of "leakproof" representations would deprive consumers of the protection currently furnished them, the rule clearly states that it shall not be interpreted as prohibiting the offering of guarantees which provide for restitution in the event of damage from electrolyte leakage provided no representation is made that the batteries in question are proof against leakage. (b) It is further argued in opposition to the adoption of the rule that any prohibition of "leakproof" representations will remove the incentive of industry members to develop a genuinely leakproof dry cell battery. This argument is also rejected. By preventing use of such absolute claims as descriptive of batteries which are not proof against leakage, the rule should have the effect of encouraging members of the industry to develop batteries which are in fact leakproof. In the event such a battery should be constructed, the rule may be amended upon a proper showing to permit use of "leakproof" representations as descriptive of batteries having such "leakproof" construction. § 403.4 The rule. (a) On the basis of the foregoing, the Commission concludes that the practice of describing dry cell batteries as "leakproof", "guaranteed leakproof" or by similar representations has the capacity and tendency to mislead and deceive purchasers and prospective purchasers and to divert business from competitors who do not so describe their products. The Commission further concludes that this practice is violative of section 5 of the Federal Trade Commission Act, and that the public interest in preventing its use is specific and substantial. (b) Accordingly, for the purpose of preventing such unlawful practices, the Commission hereby promulgates, as a Trade Regulation Rule, its conclusions and determination that in connection with the sale of dry cell batteries in commerce, as "commerce" is defined in the Federal Trade Commission Act, the use of the word "leakproof", the term "guaranteed leakproof" or any other word or term of similar import, or any abbreviation thereof, in advertising, labeling, marking or otherwise, as descriptive The rule should not be interpreted as prohibiting manufacturers or other marketers from offering or furnishing guarantees which provide for restitution in the event of damage from electrolyte leakage provided no representation is made, directly or indirectly, that dry cell batteries will not leak. § 403.6 Future product improvement. In the event any person develops a new or improved dry cell battery which he believes is in fact leakproof, he may apply to the Commission for an amendment to the rule or for other appropriate relief. The application shall be filed with the Secretary, Federal Trade Commission, and be accompanied by a full report of the data upon which the applicant relies to substantiate his claim that the battery is leakproof. The Commission will give public notice of the application and afford interested persons an opportunity to submit written data, views or arguments. The Commission in its discretion may also order such further proceedings as it deems to be necessary. If the Commission determines that the applicant's claim has been substantiated, it will issue an appropriate order amending the rule or taking such other action as may be warranted. |