available and because of its perishable quality, it would not be practical to attempt to combine it with alpaca from the standpoint of large-scale commercial manufacture. It is contended that the thought of the $40 "Alpacuna" coat capitalizing on the term "vicuna" is farfetched since most of the potential customers do not have the least idea as to vicuna and the few who do, readily understand that a coat for large production and in the lower price field could not be produced from vicuna fiber.

In addition to the above, there are certain other important facts which appear. This proceeding was started in 1938 and in the original complaint there was no charge against the petitioner for using the name "Alpacuna." After answer had been filed to original complaint, settlement negotiations were entered into at the suggestion of counsel for the Commission and the Siegel Company executed and returned the stipulation for settlement drawn by the Commission's counsel. That settlement was not approved by the Commission and thereafter an amended complaint was filed which included the allegation regarding the use of the name "Alpacuna." A group of retail stores who handle the "Alpacuna" coats have filed a brief as amicus curiae in support of the petitioner's stand. Those stores set out that they have a very definite interest in the retention of the name by reason of cooperation in extensive advertising and selling the product over a period of years and that the barring the use of the name "Alpacuna" is a matter of serious detriment and direct prejudice to them.

There was also an array of witnesses on behalf of the Commission. The Director of the Bureau of Standards of one of New York's largest department stores said: "I take it this coat is made of a combination of alpaca and vicuna fibers." A person connected with a leading Philadelphia department store stated: "" 'Alpacuna' overcoats conveys to me Alpaca and Vicuna, a combination of alpaca and vicuna." A housekeeper on cross-examination stated she arrived at the impression that the garment was made of alpaca and vicuna as she said, "Well, from the name itself." The assistant director of the Washington Better Business Bureau testified to the same effect. A person who had actually sold the coats for five or six years was of the opinion that they contained alpaca and vicuna fibers. The only person testifying who had purchased an "Alpacuna" coat said that he was told at the time he bought it that the coat was made of ..* * * a vicuna wool-bearing South American animal." A number of other persons, including a construction engineer, housewives, a teacher, a physician, a publicity director of a Philadelphia department store, a director of merchandise research of another Philadelphia department store, a clothing salesman for a third Philadelphia department store, several people connnected with various clothing houses and men's shops, all associated vicuna with the word "Alpacuna." Most of these witnesses gave their impression after examining one or more of the various Commission exhibits of advertising matter with reference to the coats.

The Commission vigorously disputed petitioner's proposition that vicuna does have an established secondary meaning. It produced dictionaries and encyclopedias in which pictures of the vicuna were shown and also various encyclopedias, dictionaries, and textile publications which do not include the secondary meaning of the word as asserted by the petitioner. Other evidence was produced tending to show that vicuna was known to a substantial portion of the public. For example, a letter from a principal of a textile high school in New York City was in evidence and stated that the school had a register of nearly 13,000 students, day and evening, with all of them taking a course in general textiles embracing knowledge of fibers obtained from goats, also sheep, vicuna, alpaca, etc. and that books dealing with the subject, and a wall chart showing pictures with samples of different fibers, vicuna, alpaca, etc. were used in the course. The letter concluded by stating: "I consider that it is part of general education under the head of commercial geography, textiles, and dressmaking for the average high school student to know something of alpaca and vicuna and other goat hairs as well as sheep wool."

Obviously, from the above very brief outline of the evidence, the petitioner has made an impressive showing in its efforts to retain the name "Alpacuna." The Siegel Company is a well known and highly regarded concern and its coats have achieved considerable popularity in their own price range. They are widely publicized and large sums of money have been expended by the Siegel Company and various retail stores in merchandising them. The Siegel Company coined the name for the coats in 1930 and has been using it since that time. At this 85257-46

6

time it is a valuable asset not only to the company but, as the amicus curiae brief points out, to certain retail establishments throughout the United States. Just as obviously, it clearly appears that there is substantial evidence supporting the Commission's decision. Even counsel for the petitioner are forced to concede, as stated in their brief: "It is true that a number of witnesses called by trial counsel testified that the name ‘Alpacuna' signified a vicuna animal fiber content." Upon the whole record the Commission made a finding that the name "Alpacuna" is misleading and deceptive to a substantial portion of the purchasing public in that it represents or implies to such persons that the coats contain fiber obtained from the animal known as vicuna. The likelihood of misleading the class of customers with which the petitioner generally deals seems slight but in view of the testimony that some of the purchasing public believes that "Alpacuna" implies vicuna content, we cannot say that the finding is not supported by substantial evidence or that the order to cease and desist from the use of the word "Alpacuna" which the Commission issued in consequence of the finding was without foundation. Even assuming that some of the testimony on behalf of the Commission was prejudiced or biased as contended, if the Commission wished to rely upon such testimony, we may not intervene whatever our thought. (Segal v. Federal Trade Commission (C. C. A. 2) 142 F. 2d 255.) With reference to the secondary meaning of vicuna or vicuna cloth, as said by Mr. Justice Cardozo in Federal Trade Commission v. Algoma Co. (291 U. S. 67 at 80):

The evidence here falls short of establishing two meanings with equal titles to legitimacy by force of common acceptation.

The Federal Trade Commission Act, Title 15, Section 45c, U. S. C. A. provides that:

The findings of the Commission as to the facts, if supported by evidence, shall be conclusive.

This means substantial evidence (Federal Trade Commission v. Curtis Publishing Co., 260 U. S. 568 at 583; Federal Security Administrator v. Quaker Oats, 318 U. S. 218, 227, 228). The fact that there is a real conflict in the testimony with indeed substantial evidence by the petitioner contrary to the finding, does not change the situation, as this court cannot appraise testimony or pick and choose "for itself among uncertain and conflicting inferences therefrom." Federal Trade Commission v. Algoma Co., supra. It is not necessary in order to sustain the Commission's finding that actual purchases must be made, with the buyer deceived by the name. It is enough if the name has both the capacity and tendency to deceive the ordinary purchaser. Potential injury is the test (Federal Trade Commission v. Raladam Co., 316 U. S. 149, 152; Federal Trade Commission v. Hires Turner Glass Co., 81 F. 2d, 362 (C. C. A. 3); Jaffee v. Federal Trade Commission (C. C. A. 7) 139 F. 2d 112). Absolving the petitioner from any deliberate effort to deceive does not affect the Commission's finding (Federal Trade Commission v. Blame (C. C. A. 2 1928), 23 F. 2d 615, 621; certiorari denied 277 U. S. 598).

Although we sustain the Commission on its finding as to the name because of substantial evidence supporting that finding, we think strongly that the order is far too harsh. It destroys a widely and favorably known trade name, in existence for fourteen years. It causes serious injury to the petitioner and its retail outlets. The infraction, as the case now stands, is slight and could be cured by simple qualifying language. We could dispose of the problem by modifying the Commission's order as suggested, if the practice as outlined in Federal Trade Commission v. Royal Milling Co. (288 U. S. 212) and Federal Trade Commission v. Hires Turner Glass Co., supra, a Third Circuit case, was still the law. While the Supreme Court has not dealt with the question of remedy in a Fair Trade Commission suit since the Royal Milling case, there have been a number of opinions from that court concerning remedies prescribed by the Labor Board. In those cases the court has forcibly pointed out that the matter of remedy is also for the administrative agency. In Medo Corp. v. Labor Board (221 U. S. 678), where the remedy ordered by the Labor Board was upheld, Chief Justice Stone for the court said in a footnote at pages 681 and 682:

It has now long been settled that findings of the Board, as with those of other administrative agencies, are conclusive upon reviewing courts when supported by evidence, that the weighing of conflicting evidence is for the Board and not for the courts, that the inferences from the evidence are to be drawn by the Board and not by the courts, save only as questions of law are raised and that upon such questions of law, the experienced judg

ment of the Board is entitled to great weight. (See Franks Bros. Co. v. Labor Board, post, p. 702; Labor Board v. Southern Bell Co., 319 U. S. 50, 60, and cases cited; Labor Board v. Nevada Copper Co., 316 U. S. 105, 106–107, and cases cited; cf. Dobson v. Commissioner, 320 U. S. 489, 402, and cases cited.) [Italics ours.]

(See also Dixie Pine v. Commissioner, 320 U. S. 516 at 519; compare Security Mills v. Commissioner, 321 U. S. 281 at 286: and see cases collected in quotation from opinion in Herzfeld v. Federal Trade Commission, infra.)

The Second Circuit, which several times, on the authority of the Royal Milling decision, had modified orders of the Federal Trade Commission,' has now recognized this in a series of opinions commencing with Herzfeld v. Federal Trade Commission (140 F. 2d, 207), where Judge Learned Hand, for the court, said at page 209:

However, since Federal Trade Commission v. Royal Milling Co., supra (288 U. S. 212, 53 S. Ct. 335, 77 L. Ed. 706), was decided, the Supreme Court has as much circumscribed our powers to review the decisions of administrative tribunals in point of remedy, as they have always been circumscribed in the review of facts. Such tribunals possess competence in their special fields which forbids us to disturb the measure of relief which they think necessary. In striking that balance between the conflicting interests involved which the remedy measures, they are for all practical purposes supreme. (International Ass'n of Machinists v. National Labor Re.ations Board, 311 U. S. 72, 82, 61 S. Ct. 83, 85 L. Ed. 50; Phelps Dodge Corp. v. National Labor Relations Board, 313 U. S. 177, 198-200, 61 S. Ct. 845, 85 L. El. 1271, 133 A. L. R. 1217; Virginia Electric & Power Co. v. National Labor Relations Board, 319 U. S. 533, 541-543, 63 S. Ct. 1214, 88 L. Ed. 1568; Wiliams Motor Co. v. National Labor Relations Board (8 Cir. 128 F. 2d 960, 965). It is true that all these decisions concerned the Labor Board, but that tribunal does not enjoy a position of peculiar authority, as the court has indicated in other connections (Gray v. Powell, 314 U. S. 402, 412, 413, 62 S. Ct. 326, 86 L. Ed. 301; Dobson v. Commissioner, 320 U. S. 489, 64 S. Ct. 239; Commissioner v. Heininger, 320 U. S. 467, 64 S. Ct. 249). In controversies about trademarks, and particularly about trade-names and make-up, the question is almost always one of degree; i. e., how far the chance of deception outweighs the inconvenience, or worse, to the merchant inevitable in compelling him to change his mark, his name, or his package. The decree marks the compromise which the court thinks adequate and necessary; it is the resultant of those unexpressed determinants which collectively we conceal under the term "discretion." We do not forget that from time immemorial this duty has been entrusted to courts, but that is irrelevant. Congress having now created an organ endued with the skill which comes of long experience and penetrating study, its conclusions inevitably supersede those of courts, which are not similary endowed.

That was followed by Parke, Austin & Lipscomb v. Federal Trade Commission (142 F. 2d 437), where Judge Chase said at pages 441 and 442:

The petitioners are standing upon much firmer ground when they insist that this paragraph in the order is needlessly severe in its sweeping requirement that the words "Smithsonian Institution" must be eliminated from the corporate name of petitioner Smithsonian Institute Series, Inc. There may well be some alternative remedy less drastic but adequately effective which might satisfy the requirements of fairness and should be adopted. On this record, however, we cannot be sure that the Commission has abused its discretion in this respect, and only in that event should we interfere with its action.

The late case of Charles of the Ritz Distributors Corporation v. Federal Trade Commission ((C. C. A. 2) 143 F. 2d 676), in the same court, with opinion by Judge Clark, is to the same effect. The question, in connection with another administrative agency, the Securities & Exchange Commission, has been before the First Circuit recently in American Power & L. Co. v. Securities and Exchange Commission (141 F. 2d 606), where Judge Magruder for the court said at page 619:

It is not enough that some other remedy, suggested by petitioners, might accomplish the statutory purposes in whole or in part. The choice of remedy

1 Bear Mill Mfg. Co. v. Federal Trade Commission (C. C. A. 2), 98 F. 2d. 67; Federal Trade Commission v. Cassoff (C. C. A. 2), 38 F. 2d, 790; Fluegelman & Co. v. Federal Trade Commission (C. C. A. 2), 37 F. 2d, 59.

is a matter confided primarily to the expert judgment of the Commission, and in this field the courts are quite properly loath to set up their own judgment in opposition to that of the administrative tribunal.

It is evident, therefore, that the discretion as to the remedy in such controversy as this has now been vested in the Federal Trade Commission. That discretion has been exercised to totally prohibit the use of the name “Alpacuna” to the petitioner. Since the Commission has such power, we are unable, in view of the evidence, to say that the power has been abused in this instance, though under the same facts and circumstances, if we were still in control of the remedy, we would modify the order as above indicated.

Order affirmed.

A true copy:
Teste:

Clerk of the United States Circuit Court of
Appeals for the Third Circuit.

Mr. O'HARA. I just want to say that I hope we are dealing here with principles and with the common duty that all of us have, that any witness or any expression from any of the members of the committee, is certainly a God-given right; and I presume to go on doing just that so long as I am on the committee.

Mr. HOGE. Thank you, Mr. Chairman.

Mr. RABIN. I understand Mr. Liddy simply wants to submit some paper or document.

Mr. LIDDY. I wish to submit a memorandum in addition to my few remarks and try to summarize it in order to cut it down.

Mr. RABIN. I am very sorry, our presence is required on the floor at this time.

We will not be able to continue this afternoon. The requirements of the floor come first, as you understand. Our presence is immedïately required on the floor of the House.

Mr. REECE. Was there any discussion whether we could meet in the morning? What I had in mind is that a great many of the people who are interested, as you can see, are here from out of town; travel is so difficult these days, if we could go ahead I think we should do so.

Mr. RARIN. We expect Mr. Lea out in just a few minutes.

Mr. O'HARA. There is a question whether we are going to adjourn to tomorrow morning.

Mr. RABIN. For the benefit of those who are from out of town and wish to stay over, the committee will meet again tomorrow at 10 o'clock, in this room.

(Whereupon, at 4 o'clock p. m., Tuesday, January 29, 1946, the committee adjourned to reconvene Wednesday, January 30, 1946, in the same room.)

AMEND FEDERAL TRADE COMMISSION ACT

WEDNESDAY, JANUARY 30, 1946

HOUSE OF REPRESENTATIVES,

COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE,

Washington, D. C. The committee met at 10 a. m., Hon. Benjamin J. Rabin presiding. Mr. RABIN. We continue this morning with the consideration of H. R. 2390. Mr. Hugo Mock. Are you ready to proceed, Mr. Mock? Mr. Mock. Yes, sir; my remarks will be very brief.

Mr. RABIN. Very well.

STATEMENT OF HUGO MOCK, REPRESENTING THE TOILET GOODS

ASSOCIATION

Mr. Mock. My name is Hugo Mock; I represent the Toilet Goods Association, which represents the bulk of the toilet goods industry. I am here as their representative, and also in my individual capacity as an attorney.

May I say at the beginning that I was very much gratified yesterday at the unusual approach made by Mr. Murphy, of the Advertising Federation, in which he said that the Federal Trade Commission was not on trial and was not a defendant. That point of view was particularly emphasized by Mr. Reece himself, and I think it is very important to keep to that point of view and not to consider in this case the Federal Trade Commission a defendant.

I am not here to eulogize the Commission; it has been working since 1914 on the initiative supplied by Woodrow Wilson, and Justice Brandeis. It has during that time, I might say, been the conscience of American business, and to use a phrase of Voltaire-I do not wish to be irreverent, but I think when Voltaire said, "If we didn't have God, we would have to invent one," if we didn't have the Federal Trade Commission, we would have to invent it, because we needed that kind of an agency for American business.

That being the case, however, I think we are entitled, all of us, to be considered as partners in this enterprise, and I think I may go so far as to say we are entitled to the cooperation of the Commission itself in correcting such errors as we may find, especially of a procedural

nature.

It must be remembered that from the very foundation of the Commission, and its intended jurisdiction, it was meant to cover practically the whole field of industrial activity, and that has been the source of its merits, and also of some of the defects of its operation. Much of its technique had to be improvised, and despite the splendid job it