And now said cause coming on to be heard before this court upon the joint motion of the petitioner and the respondent for a final disposition of this cause by a final decree, as upon mutual consent of the parties, which proposed final decree was submitted by the parties to the court, and the court, having considered the same and being fully advised in the premises:

On consideration whereof, it is now here ordered, adjudged, and decreed by this court:

1. That said motion be, and the same hereby is, sustained.

2. That the body of the order to cease and desist issued by the Federal Trade Commission herein be, and the same hereby is, modified to read as follows, to wit:

It is now ordered that respondent, The Ohio Leather Co., its officers, agents, representatives, and employees, in connection with the advertising, offering for sale and sale, in commerce among the several States of the United States, of leather made from calfskins, shall cease and desist:

From using the word "Kid" alone or in combination with the word "Kaffor" or other word or words, as a trade name, brand,

"Elk." because supposed to resemble elk in appearance.

Kid.-Shoe leather made from the skins of mature goats. The skin of the young goat or "kid" is made into the thin flexible leather used in the making of kid gloves, being too delicate for use in shoes. Mat kid.-A thin calfskin used for shoe uppers. Morocco # * applied in general to heavy goatskin of any vegetable tannage, used for shoes. Pebbled Goat.-Tanned goatskin, finished with a pebbled surface.

Much instructive material is found in the Dictionary of Leather Terminology, published by a joint committee of the tanners and leather goods industries, and "dedicated to the public in the interest of truth in merchandising." In the introduction on page 3, it is said: "Many leathers are known commercially or popularly by names of hides or skins of which they are not actually made. Some of the names may have originated in an attempt to describe the article and most of them today are kept alive by trade custom. Names of some skins (like chamois) have come to mean a finish as much as a kind of leather. It has even become necessary to insert the word 'genuine' before some kinds of leather (like buck) to distinguish it from its imitators." The producing skins are in groups. One is the sheep and lamb group, in which are included the wooled skins and cabrettes [The Tanners' Council now thinks it rightful to include the cabretta skins as kid]; and this group is the producing leather for, among other things, chamois. Another group is the goat and kid group [with no intimation that goatskins are kidskins]. On page 8 we find: "In describing various classes of leather, the name of the animal from which the skin was taken is generally used. Therefore, 'Cowhide,' 'Goatskin,' and similar names infer that the leather is actually made from skins of those animals. Certain exceptions to this have become established trade practice, and comment is made thereon in the definitions which follow" On page 9: "Chamois leather.-A soft leather originally made from the skins of the Alpine antelope, or chamois, now practically extinct, but at the present time from the fleshers or underskins of sheepskin, oil-dressed, suede-finished, principally used for cleaning and polishing purposes and for gloves." On page 10: "Elk.-A purely trade term for cattle-hide shoe leather of a special tannage and finish. Genuine Elk leather is designated by the term 'buckskin'." page 11: "Glove leathers-Kid.-Term commonly applied to grain glove leathers from sheep or lamb skins or wool or hair types. This is an instance of the public deceiving itself, as the name clings to the product merely in popular use, and is never used by manufacturers, except for stock actually made of immature goatskins." On page 12: "Kid.-In general trade and popular usage it has come to refer to shoe upper leather tanned from either goat or kid skins and to glove leather tanned from sheep and lamb skins." On page 13: "Morocco leather.-Term applied to distinctive natural grain or vegetable-tanned fancy goatskin, to which the name is properly restricted. The name originally indicated leather from Morocco, later was applied to all goatskin leather. Its application to any but fancy goatskin is incorrect, but has been so commonly used in the past that it has become necessary to use the word 'genuine' to define the true leather. As a commercial classification 'Morocco Grain' is applied to embossed imitations of the natural goat grain or other kinds of leather." On page 21: "French Kid or French Kid Finish-As the name implies, the original French kid' was made in France, and since it was a distinctive finish, the term in time was applied to a special class of leather made in other countries. Today it means leather tanned from kidskin by an alum or vegetable process. In the glove trade it is usually called "Genuine

Kid."

On

It is to be noted that in this Dictionary of Terminology, in the leather statistics published by the Department of Commerce, and in those published by the Tanners' Council, goat and kid skins are included today in one group for statistical purposes, but there is nothing to indicate their merger under the name of kid.

21 Entered April 7, 1931.

104717-39- -9

label, or as a heading for advertising matter, unless immediately in conjunction therewith there are used conspicuously apt and adequate words showing it to be made of calfskin, and otherwise using said name or names unless accompanied by descriptive language easily legible and readily discernible, clearly showing it to be a product of calfskin.

3. That said order of the Federal Trade Commission, as so modified, be, and hereby is, affirmed.

4. That respondent, The Ohio Leather Co., its officers, agents, representatives, and employees desist and refrain from violating said order as so modified and affirmed, or any portion or portions thereof.

5. That respondent, The Ohio Leather Co., shall within 60 days after the day on which this decree is made and entered, file with the Federal Trade Commission a report in writing setting forth in detail the manner and form in which it has complied with the modified order to cease and desist hereinabove set forth.

6. That no judgment for costs be awarded herein.

All of which is finally ordered, adjudged, and decreed by the

court.

BAYUK CIGARS, INC. v. FEDERAL TRADE COMMISSION (U. S. Circuit Court of Appeals, Third Circuit. June 14, 1930. On rehearing November 21, 1930)

No. 3788

[Not reported in National Reporter System. Decrees modifying and affirming cease and desist order of Federal Trade Commission, on petition for review thereof, cross bill by Commission for enforcement, and Commission petition for rehearing.]

Petition by the Bayuk Cigars, Inc., for review of a cease and desist order directed against said company by the Federal Trade Commission, and cross bill by the Commission for the enforcement of its order. Decree by the court, and amended decree, modifying and affirming said order.22

22 Bayuk Cigars, Inc., respondent in Commission proceeding docket 1391, as found by the Commission (see 12 F. T. C. 19 et seq.), designated, described, banded, labeled, and sold a 5 cent and 8 cent cigar containing none of the famed Havana or Cuban tobacco. as "Havana Ribbon." featuring said words upon the bands and containers of said cigar, and extensively so advertised such cigar under said name and designation in magazines, daily newspapers of general circulation and in signs, placards, etc.

Respondent Bayuk Cigars, Inc., further, as found, similarly designated, described, banded, labeled, advertised and sold a 10 cent, 2 for a quarter, and 15 cent cigar, containing Havata or Cuban tobacco only in a minor proportion, under the designation "Mapacuba," featuring such word upon the brand, together with the Cuban shield or coat of arms, pictures of Havana and Havana scenes, the Cuban flag. Cuban tobacco fields, and a Spanish legend vouching for the high quality of the article because coming from the famous Vuelta Abajo District of Cuba.

Such practices, as above set forth, as found by the Commission had the capacity and tendency to mislead and deceive the purchasing public to believe the cigar first referred to to be composed in whole or in part of Havana tobacco, and the second cigar to be wholly or principally so composed, and did in fact so mislead and deceive many of the purchasing public. Said practices had the further capacity and tendency to induce purchase of aforesaid cigars in such erroneous beliefs, and to divert trade unfairly from and otherwise injure and prejudice, and did so unfairly divert trade from and otherwise injure and prejudice the business of competitors rightfully and truthfully selling and distributing

Mr. C. Andrade, Jr., of New York City, and Fox, Rothschild, O'Brien & Frankel, of Philadelphia, Pa., for petitioner.

Mr. Robert E. Healy, Chief Counsel, Mr. Martin A. Morrison, Assistant Chief Counsel, and Mr. Henry Miller, of Washington, D. C., for respondent.

DECREES

ORIGINAL DECREE

(U. S. Circuit Court of Appeals for the Third Circuit. March term,

1928)

No. 3788

Bayuk Cigars, Inc., petitioner, v. Federal Trade Commission,

respondent

On petition for review of an order of the Federal Trade Commission.

This cause came on to be heard on the transcript of record from the Federal Trade Commission of the United States and was argued by counsel.

On consideration whereof, it is now here ordered, adjudged, and decreed by this court that the order of the said Federal Trade Commission in this cause be modified by requiring that Bayuk Cigars, Inc., shall use on the boxes of its two brands of cigars labels designed, colored, worded, and printed as follows [see opposite]:

and that the order of the said Federal Trade Commission, when made to conform to the above modification, is in all respects affirmed. Per Curiam:

PHILADELPHIA, June 14, 1930.

BUFFINGTON, Circuit Judge.

eigars composed in whole, and cigars composed in part only, of Havana or Cuban tobacco, and competitors selling and distributing cigars composed of other tobacco, without in anywise representing their cigars as containing such Cuban or Havana tobacco.

Order of the Commission required respondent to cease and desist, in connection with sale and distribution of sales in interstate commerce

(1) From using the word "Havana," or other word or words of similar import, alone or in conjunction with the word "Ribbon," or other word or words, as or in a brand name for or as descriptive of any such cigars which are not composed entirely of tobacco grown on the Island of Cuba;

(2) From using the word "Mapacuba," or other word or words of similar import, as or in a brand name for or as descriptive of any such cigars which are not composed in whole or in part of tobacco grown on the Island of Cuba;

(3) From using the word "Mapacuba," or other word or words of similar import, as or in a brand name for or as descriptive of any such cigars which are composed in part only of tobacco grown on the Island of Cuba, unless said word be immediately followed and accompanied by a word or words in letters equal or greater in size, visibility and conspicuousness, clearly and unequivocally indicating or stating that such cigars are 10t composed wholly, but in part only, of tobacco grown on the Island of Cuba;

(4) From using a depiction simulating the flag, emblem, insignia, or coat of arms of the Republic of Cuba, map of Cuba, Cuban tobacco fields, city or harbor of Havana, Cuba, or depiction of similar import, in the advertising, branding, or labeling of any such cigars which are not composed in whole or in part of tobacco grown on the Island of Cuba: (5) From using a depiction simulating the flag, emblem, insignia, or coat of arms of the Reneublic of Cubi, map of Cuba, Cuban tobacco fields, city or harbor of Havana, Cuba, or depiction of similar import, in the advertising, branding, or labeling of any such cigars which are composed in part only of tobacco grown on the Island of Cuba, unless such depiction be accompanied by a word or words of equal or greater visibility and conspicuousness, clearly and unequivocally indicating or stating that such cigars are not composed wholly, but in part only, of tobacco grown on the Island of Cuba;

(6) From representing in any other manner whatsoever that any of said cigars contain or are composed in whole or in part of tobacco grown on the Island of Cuba, when such is not true in fact.

DECREE ON REHEARING

(U. S. Circuit Court of Appeals for the Third Circuit. March term, 1928) No. 3788

Bayuk Cigars, Inc., petitioner, v. Federal Trade Commission, respondent

The decree in the above-entitled case is, on this 21st day of November 1930, amended by striking out the second paragraph and substituting in lieu thereof the following:

"On consideration whereof, it is now here adjudged and decree [d] that the order of the Federal Trade Commission in this case be modified by requiring that Bayuk_Cigars, Inc., shall use on the boxes of its two brands of cigars under consideration labels designed, colored, worded, and printed in the manner shown by the labels made a part of this decree; that it shall use on its placards advertising those two brands the words, printing, and coloring of the said labels, excepting the gilded effect of the words 'Havana Ribbon' and excepting also, should it desire, the picture of a tobacco plant with its accompanying words, and the concluding words of guaranty; and that it shall use in its magazine, newspaper, and other advertisements of those brands, when not capable of coloring, the words of the said labels with the optional exceptions aforesaid."

Without withdrawing, limiting, or otherwise disturbing the jurisdiction of the Federal Trade Commission over this case under the modified order, this court will retain jurisdiction of the case to act within its powers in any exigencies that may arise by reason of the premises.

Per curiam:

BUFFINGTON, Circuit Judge.

FEDERAL TRADE COMMISSION v. HOBOKEN WHITE LEAD & COLOR WORKS, INC.

(U. S. Circuit Court of Appeals, Second Circuit. January 19, 1931)

No. 11284

[Not reported in National Reporter System. The Commission's findings were to the effect that the corporation advertised and sold one of its products under the name "White Lead" and that this product contained approximately 80 percent of ingredients other than lead carbonate or lead sulphate; and that it sold and distributed another product under the name "Zinc Lead," when the aggregate of the zinc and lead sulphate contained therein did not exceed approximately 20 percent.

The respondent filed an answer consenting to the entry of a decree affirming the Commission's order and providing for the enforcement thereof, whereupon the court entered the following decree.

Motion to punish for contempt granted, Nov. 20, 1933; decision 67 F. (2d) 551. Decree entered, Nov. 27, 1933. See p. 241 following.]

Order and decree affirming and enforcing order of Commission in 12 F. T. C. 495, requiring respondent to desist from the use of the words "White