FEDERAL TRADE COMMISSION DECISIONS

FINDINGS AND ORDERS, JULY 1, 1947, TO JUNE 30, 1948

IN THE MATTER OF

SAMUEL E. BERNSTEIN, INC., NOW, NATIONAL SILVER COMPANY

SUPPLEMENTAL FINDINGS AS TO THE FACTS, AND MODIFIED CEASE AND DESIST ORDER in regaRD TO THE ALLEGED VIOLATION OF SECTION 5 OF AN ACT OF CONGRESS APPROVED SEPTEMBER 26, 1914

Docket 1068. July 3, 1947

While "Sheffield Plate" as made in England during the eighteenth century by the fusion process has not been made for many years, and existing pieces thereof, now found chiefly in public and private collections, are regarded as antiques, a widespread public demand for reproductions of the old designs and patterns, by virtue of their beauty and artistic appeal, is being met by the manufacture of copies of old Sheffield Plate designs and patterns from various base metals, coated with silver by the electroplating process, now used in making of all silver-plated ware.

Where the Commission on July 7, 1926, made findings as to the facts and conclusion, and issued its cease and desist order requiring respondent, Samuel E. Bernstein, Inc. (predecessor in interest of National Silver Co., petitioner herein), its agents, etc., to cease and desist "from employing or using in connection with the sale of silver-plated ware which was not made in Sheffield, England, the word 'Sheffield' alone or in combination with any other word or words, sign, symbol, or device to describe or designate such silver-plated ware either by stamping or impressing the name 'Sheffield' thereon or in any other manner;" and,

Thereafter, successor in interest to said Samuel E. Bernstein, Inc., on November 22, 1946, presented its petition seeking relief from certain alleged unfair competitive disadvantages imposed upon it by said order, and, by later supplemental petition requested that it be permitted, in connection with the sale of reproductions of Sheffield designs and patterns, to use the words “Sheffield Design Reproductions,' 'Reproductions of Sheffield Designs,' 'Reproductions of Old Sheffield Designs,' 'Copies of Old Sheffield Patterns,' and 'Reproductions of Old Sheffield Patterns,' together with words indicating the country or place of manufacture of such reproductions that are offered for sale, such as 'Made in the U. S. A.,' or 'Made in Argentina'": Held, That while copies of old "Sheffield Plate" designs and patterns do not constitute, in "structure, method of manufacture and material," reproductions of the articles in question, no longer manufactured for many years

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and now regarded as antiques, such articles of modern electroplated silve ware do constitute reproductions of such designs and patterns and may tru fully be thus described through such designations as "Sheffield Design E production," etc., as below set out, when qualified by the words "Made U. S. A." or words of similar import and meaning, of equal size and co spicuousness, clearly revealing the country in which made; and that chang conditions and the public interest require that said original order be opened and modified by the addition of the proviso specified, permitting t use of the words in question under the conditions set forth and subje to said proviso's qualifications.

Mr. Abner E. Lipscomb for the Commission.

Brill, Bergenfeld & Brill, of New York City, for respondent. SUPPLEMENTAL FINDINGS AS TO THE FACTS AND MODIFIED ORDER

Pursuant to the provisions of the Federal Trade Commission Ac the Federal Trade Commission on the 17th day of September 192 issued and thereafter served its complaint in this proceeding upo Samuel E. Bernstein, Inc., charging it with unfair methods of com petition in commerce, in violation of the provisions of said act. O October 31, 1923, the respondent filed its answer. After a stipulation as to the facts had been agreed to in lieu of the taking of testimony and other proceedings, and the Commission had made findings a to the facts and conclusion, the Commission on July 7, 1926, issued a order, requiring the respondent, Samuel E. Bernstein, Inc., its agents servants, and representatives to cease and desist :

From employing or using in connection with the sale of silverplated war which was not made in Sheffield, England, the word "Sheffield" alone or in com bination with any other word or words, sign, symbol or device to describe o designate such silverplated ware either by stamping or impressing the same "Sheffield" thereon or in any other manner.

Thereafter, on November 22, 1946, the National Silver Co., with which Samuel E. Bernstein, Inc., had merged in 1928, presented its petition seeking relief from certain alleged unfair competitive disad vantages imposed upon it by said order. On January 7, 1947, the respondent filed a supplement to its petition requesting that to its said petition there should be added the following:

That in connection with the sale of reproductions of Sheffield designs and patterns, it, the National Silver Company, be permitted to use the words "Sheffield Design Reproductions," "Reproductions of Sheffield Designs," "Reproductions of Old Sheffield Designs," "Copies of Old Sheffield Patterns" and "Reproductions of Old Sheffield Patterns," together with words indicating the country or place of manufacture of such reproductions that are offered for sale, such as "Made in the U. S. A.," or "Made in Argentina."

Findings

Subsequently, on January 15, 1947, a stipulation was entered into y and between Abraham Brill, attorney for the respondent, and Daniel J. Murphy, Assistant Chief Trial Counsel of the Commission, hereby it was agreed, subject to the approval of the Commission, hat the statement of facts in said stipulation may be taken in addiion to and as a supplement of the facts previously stipulated in this ase, and the respondent expressly waiving all intervening procedure and agreeing that said Commission may proceed upon said stipulaion as to the facts to make its report, stating its findings as to the facts and its conclusion based thereon, and enter its order disposing of this proceeding without the presentation of argument or the filing of briefs. Thereafter, this proceeding regularly came on for final hearing before the Commission on said petition and said stipulation, and said stipulation having been approved, accepted and filed, and the Commission having duly considered the same and being now fully advised in the premises, finds that this proceeding is in the interest of the public and makes its supplemental findings as to the facts and its supplemental conclusion drawn therefrom.

SUPPLEMENTAL FINDINGS AS TO THE FACTS

PARAGRAPH 1. Respondent, National Silver Co. is a corporation organized, existing, and doing business under the laws of the State of New York, with its principal office and place of business at New York in said State. In 1928, the National Silver Co. merged with Samuel M. Bernstein, Inc., the original respondent in this case, and bas since been known as the National Silver Co., and, since the aforesaid merger, has been subject to the cease and desist order heretofore issued against Samuel E. Bernstein, Inc. Respondent is now, and has been for many years, engaged in the business of buying and selling cutlery and electroplated silverware.

PAR. 2. "Sheffield plate" as manufactured in England during the eighteenth century by "the fusion process" has not been manufactured for many years, and all silver-plated ware is now manufactured by the electroplating process. The "Sheffield plate" which was manufactured during the eighteenth century is now to be found chiefly in public and private collections, and the existing pieces are regarded as antiques. Because of their rarity, these "Sheffield plate" antiques are not readily obtainable to the buying public. In view, however, of the beauty and artistic appeal of the designs and patterns of old "Sheffield plate" there exists a widespread public demand for reproductions of these old designs and patterns. This public demand is

being met by the manufacture of copies of old "Sheffield plate" de signs and patterns from various base metals coated with silver by the electroplating process. Although such modern electroplated silver ware does not constitute reproductions of old "Sheffield plate" in the sense of being the same in "structure, method of manufacture, and material," they constitute a reproduction of the old Sheffield design and patterns and may truthfully be described by the word reproduc tion when such word is used to modify the words "designs or patterns or words of similar import and meaning, rather than the article in general. Such a reproduction of the design and pattern of an old Sheffield piece may, therefore, truthfully be described as Sheffield Design Reproduction, Reproduction of Sheffield Design, Reproduction of Old Sheffield Design, Copy of Old Sheffield Pattern, and Reproduc tion of Old Sheffield Pattern, provided such descriptive words are qualified by the words "Made in U. S. A." or words of similar import and meaning of equal size and conspicuousness clearly revealing the country in which such ware has been manufactured.

SUPPLEMENTAL CONCLUSION

The Commission concludes that the changed conditions of fact herein set forth and the public interest, require that the original order to cease and desist herein be reopened and modified by the addition thereto of a provision, as follows:

Provided, however, That the word "Sheffield" may be used in connection with sale of silver-plated ware, not made in Sheffield, England, if it is used only in immediate connection with the word or words "design" or "pattern," or words of similar import and meaning, so as clearly to reveal that the article described is a modern copy, or modern reproduction, of the "design" or "pattern" of a piece of Sheffield plate manufactured in the 18th century and such descriptive words are qualified by the words "Made in U. S. A.," or words of similar import and meaning of equal size and conspicuousness revealing the country in which said ware has been manufactured.

MODIFIED ORDER TO CEASE AND DESIST

An order having heretofore been entered by the Federal Trade Commission in this proceeding on July 7, 1926, requiring Samuel E. Bernstein, Inc., its agents, servants, employees, and representatives to cease and desist from using the word "Sheffield" in connection with the sale of silverplated ware not made in Sheffield, England; and the National Silver Co. having merged with the original respondent herein in 1928, and having thereafter been subject to the provisions of said

Order

rder to cease and desist, and said National Silver Co. having filed its etition on November 22, 1946, seeking the reopening and modification f said order to cease and desist; and on January 5, 1947, having enred into a stipulation with Daniel J. Murphy, Assistant Chief Trial ounsel for the Commission, subject to the approval of the Commison, which stipulation provides, in addition to other provisions, that ithout further evidence or intervening procedure, the Commission ay make its findings as to the facts and conclusions based thereon, nd enter its order disposing of this proceeding;

And the Commission having approved said stipulation, and having ound that changed conditions of fact, subsequent to the original order o cease and desist herein, and the public interest, require the said order e reopened and modified by the addition thereto of a provision, as follows:

"Provided, however, That the word "Sheffield" may be used in connection with the sale of silverplated ware, not made in Sheffield, England, if it is used only in immediate connection with the word or words "design" or "pattern," or words of similar import and meaning so as clearly to reveal that the article described is a modern copy, or modern reproduction of the "design" or "pattern" of a piece of Sheffield Plate manufactured in the 18th Century, and such descriptive words are qualified by the words, "Made in U. S. A.," or words of similar import and meaning of equal size and conspicuousness revealing the country in which said ware has been manufactured.

It is ordered, That the respondent, National Silver Co., its officers, representatives, agents, and employees, directly or through any corporate or other device, in connection with the offering for sale, sale, and distribution of silverplated ware in commerce as "commerce" is defined in the Federal Trade Commission Act, do forthwith cease and desist:

From employing or using in connection with the sale of silverplated ware which was not made in Sheffield, England, the word "Sheffield” alone or in connection with any other word or words, sign, symbol, or device to describe or designate such silverplated ware either by stamping or impressing the name "Sheffield" thereon or in any other manner; Provided, however, That the word "Sheffield" may be used in conLection with the sale of silverplated ware, not made in Sheffield, England, if it is used only in immediate connection with the word or words "design" or "pattern," or words of similar import and meaning of equal size and conspicuousness so as clearly to reveal that the article described is a modern copy or modern reproduction of the "design" or "pattern" of a piece of Sheffield Plate manufactured in the eighteenth century, and such descriptive words are qualified by the