Wilson in his message to Congress on December 5, 1916, in which he referred to the Webb-[467] Pomerene bill then pending, as a measure of capital importance, and as one "which seeks to extend greater freedom of combination to those engaged in promoting the foreign commerce of the country that is now thought by some to be illegal under the terms of the law against monopoly.'

For the foregoing reasons, and others more specific, which, had I the time, I would express, I dissent.

FULLERTON, J. I concur in the dissenting opinion of Judge HOLCOMB.

ADDENDUM.

MASLAND DURALEATHER CO. ET AL. v. FEDERAL TRADE COMMISSION.1

(U. S. Circuit Court of Appeals, Third Circuit. September 18, 1929.) No. 4085.

(SYLLABUS BY THE COMPILER.)

In proceedings by Federal Trade Commission for unfair methods of competition under section 5 of the Federal Trade Commission Act, 38 Stat. 719—

(1) The findings of the Commission as to the facts, if supported by testimony, are conclusive.

(2) Evidence taken by Commission held sufficient to sustain its finding that name given to imitation leather involved was "Duraleather."

(3) A false trade name or one that has both the capacity and tendency to deceive the ordinary purchaser falls within the condemnation of the statute. (4) "Duraleather" as name for imitation leather is inherently false and misleading and its use may be enjoined under the act.

Petition by Masland Duraleather Company and W. & J. Sloane to review an order of the Federal Trade Commission. Order modified and affirmed.

[734] Robert T. McCracken and C. Russell Phillips, both of Philadelphia, Pa., for petitioners.

Robert E. Healy, Edward J. Hornibrook, and Adrien F. Busick, all of Washington, D. C., for respondent.

Before WOOLLEY and DAVIS, Circuit Judges, and RELLSTAB, District Judge.

RELLSTAB, District Judge.

The Masland Duraleather Company, a Pennsylvania corporation, and W. & J. Sloane, a New Jersey corporation, jointly petition this court to review and set aside an order made by the Federal Trade Commission, commanding them to cease and desist from using the term "Duraleather" as a trade name on imitation leather, on their stationery, in their advertisements of the product, and "from using the word leather or any other word or combination of words in such manner as to import or imply that such products are real leather." The respondent hereafter will be called Commission, and the petitioners, when separately referred to, will be termed Masland Company and Sloane, respectively.

1 Reported in 34 F. (2d) 733. The Commission's proceedings are reported in 12 F. T. C. 351.

The Commission, in that part of its answer which is in the nature of a cross-bill, prays for a decree affirming this order and requiring petitioners to conform thereto.

The challenged order is the result of proceedings instituted by the Commission, pursuant to the act of September 26, 1914, 38 Stat. 717 (15 USCA §§ 41-51), entitled "An Act to create a Federal Trade Commission, to define its powers and duties, and for other purposes," in which it was charged that petitioners were using unfair methods of competition in interstate commerce in violation of the provisions of section 5 of that act (15 USCA § 45).

The decried business methods and their alleged consequences are set out in two counts. Both deal with petitioners' use of an alleged false and misleading trade name in marking, advertising, and marketing their artificial leather product, and the results thereof. The first relates to competition in the pertinent trade generally, while the second is confined to a particularly named alleged competitor.

The Commission's findings underlying this order, pertinent or necessary to be understood on this review, somewhat abbreviated, are: That the Masland Company is "engaged in the manufacture of s product which it calls 'Duraleather,' an imitation or artificial leather"; that Sloane is engaged in selling and distributing this product "to manufacturers of automobiles, automobile bodies, trunks, suit cases, satchels, upholstered articles, and other similar products, who manufacture many of said products in whole or in part of said imitation or artificial leather"; that petitioners compete with others making "leather and imitation or artificial leather," who sell the same throughout the United States; that petitioners' product contains ne leather, but is painted and embossed with a grain closely resembling genuine leather; that the manufacture of this imitation leather was begun in 1914 by Walter E. Masland, individually, who designated it as "Duraleather"; that since its incorporation (1919) the Maslani Company continued this manufacture and designation; that prior to 1924 Masland Company branded its imitation leather with the word "Duraleather" and so advertised it without explanation that it w artificial and in imitation of genuine leather; that since 1924 Masland Company "has used the term 'Duraleather' in branding, labeling. designating, and advertising its said imitation or artificial leather. which term is printed in very conspicuous type and is also accom panied with the phrase 'The Ďurable Leather Substitute' in letters of less conspicuous type"; that samples of this imitation leather, sent to customers and prospective customers before 1924, "bore the word 'Duraleather' without explanation that the product was imitation or artificial"; that since 1924 "these samples have borne the word 'Duraleather' in conspicuous letters and the words 'A Durable Leather Substitute' in letters so small as to be hardly discernible to the human eye"; that "Duraleather" is frequently billed to c tomers of petitioners by Sloane, without explanation on the billing or invoice that the same is imitation or artificial; that on orders to imitate samples of genuine leather furnished by persons desiring such imitation, Masland Company endeavors to make this particular imitation; that in 1923 the Virginia Trunk & Bag Company purchased from one of the jobber customers of petitioners a quantity of "Dursleather," which it used in making traveling bags and suit cases, and which it sold in several of our States as "Duraleather" bags, "Dura

leather" suit cases, and "Duraleather" overnight bags, without explanation that the same were made of artificial or imitation leather, and that in the same year this company issued more than 10,000 catalogues and circulars "in which some of its bags and suit cases were described as 'black cobra grained Duraleather,' without explanation that the same were made from imitation leather"; that the reason this company "used the word 'Duraleather,' as above described, was because such name was given to the prod- [735] uct by the manufacturers thereof"; that among the competitors of petitioners is A. C. Lawrence Leather Company, which is engaged in the manufacture of genuine leather, which it sells to makers of shoes, luggage, upholstered furniture, automobiles, novelties, and other products, located in several States; that this company for more than 25 years used its registered name, "Duro," as a trade name for calfskin and veal skin leathers made and sold by it, and advertised this trade name in connection with its said products as "Duro calf," "Duro veal," and "Duro calf leather"; that this company successfully opposed the registration by Masland Company of the word "Duraleather"; that there is a similarity between the designated products of this company and the "Duraleather" made by the Masland Company; that the use by petitioners "of the trade name 'Duraleather' has the capacity and tendency to mislead and deceive the consuming public into the belief that said 'Duraleather' is a product of the aforesaid competitor and to cause the consuming public to purchase articles made in whole or in part from 'Duraleather' in such belief"; that petitioners' use of the term "Duraleather" as applied to their imitation leather suggests the use of that term by their customers or the latters' customers "in the marketing and sale of products made in whole or in part of 'Duraleather""; that such uses have "the tendency and capacity to divert trade from those who are engaged in the manufacture of real leather and those who are engaged in the manufacture of imitation leather and selling and advertising the same as such imitation leather"; that such uses also have "the capacity and tendency to deceive the consuming public into the belief that the articles made therefrom are made from genuine leather and to cause the consuming public to purchase the same in such belief"; and that petitioners' recited "acts and practices place in the hands of others the means of committing a fraud upon the consuming public by enabling dealers to offer for sale and sell to the consuming public articles made from 'Duraleather' as and for articles made of real leather."

These findings are challenged in the following summarized particulars:

That the name of petitioners' product since 1924 has not been "Duraleather," but "Duraleather, the Durable Leather Substitute," and that this amplified name is clearly legible.

That there is no evidence (a) of competition between petitioners and A. C. Lawrence Leather Company; (b) or between them and any manufacturer of genuine leather; (c) or that the public, or any one, has been, or is likely to be, deceived by such amplified name; (d) or that sales of this product were made without knowledge on the part of, or explanation to, purchasers that it was imitation leather; (e) that any one was, or is likely to be, deceived into the belief that the product was genuine leather; (f) or that the amplified name suggests to customers a product made therefrom as being made of leather or "Dura

leather"; (g) or that thereby any trade has been, or is likely to be, diverted from manufacturers of real leather; (h) or that the consuming public has been, or is likely to be, deceived into the belief that articles made from that product are made from genuine leather; (i) or tha: the consuming public has been misled into purchasing such articles as a result of any such belief; (j) or that petitioners' use of that amplified name, places, or is likely to place, in the hands of others the means of deceiving the public into believing that such articles are made of res! leather.

In dealing with these alleged errors, we must bear in mind that by section 5 of the act referred to (15 USCA § 45), "the Commission is empowered and directed to prevent persons, partnerships, or corpors tions, except banks, and common carriers subject to the acts to regu late commerce from using unfair methods of competition in commerce," and that its findings as to facts, if supported by testimony, are made conclusive. Federal Trade Commission v. Winsted Hosiery Co. 258 U. S. 483, 42 S. Ct. 384, 66 L. Ed. 729; Curtis Pub. Co. v. Federa Trade Commission (C. C. A. 3) 270 F. 881, Íd., 260 U. S. 568, 43 S. Ct. 210, 67 L. Ed. 408.

It is noted that the basic challenge relates to the trade-name, and that many of the other challenges need be considered only in case this court determines in favor of the petitioners' contention that the trade-name is not "Duraleather," but "Duraleather, the Durable Leather Substitute."

It is conceded, and the record establishes, that from 1915 to 1924 the name for this imitation leather was "Duraleather," without any additions. During this period the product in question was advertised and marketed under that trade-name, the first four years by Walter E. Masland and thereafter by his successor, the Masland Company. In 1924, for some reason not disclosed, the was added to the word "Duraleather" the phrase "The Durable Leather Substitute," from which time this amplified name has been used in marking, advertising, and marketing this imitation leather However, the word "Duraleather," whenever it appeared with the additions referred to, was always on a line by [736] itself and was ef much larger type than the additions, which appeared on a line belo and by far was the more prominent; and on some of the Masland Company's billheads and on one form of the Sloane tags used in labeling this product, it was made the more conspicuous by being printed in red ink in contrast with the black ink used in printing the additional phrase. On samples, this addition was in many instances hardly discernible. Undisputedly "Duraleather" was the sole name for this imitation leather for nine years. Thereafter and seemingly purposely, it was the most conspicuous and ot standing word in the marking, advertising, and billing of this imita tion leather. This "catchy" word, notwithstanding its later associa tion with the additional phrase referred to, did not lose its significance or dominancy as the commercial signature under which the peti tioners were advertising and marketing their product.

Some time subsequent to the addition of this phrase, the Masland Company advertised its imitation leather in the Decorative Fur nishers Directory and Buyers' Guide, published in New York City in pocket edition form. This advertisement carried a prominent displayed cut or picture of an upholstered armchair. Above and