1862," and the moment the awards were made, issued his bottles bearing such labels and also placed those words upon the cases in which he exported his pickles.

The vice chancellor refused an injunction, saying:

On the question of balance of convenience I should be decidedly in favor of the plaintiff: the inconvenience to the defendant would be merely the necessity of telling the truth. It is, however, no part of the duty of this court to enforce the observance of the dictates of morality *

*

*

That case accounted very largely for the passage of a special act a year or so later, which, however, was confined to the false claims of awards by that particular exposition. (Exhibition medals act, 1863, 26-27 Vict., Chap. 119.) During the debate on this bill it was stated that

A monstrous system of fraud prevailed in regard to these medals, which ought to be checked without delay.

A somewhat similar case was decided by the Supreme Court of Georgia which denied an injunction to restrain the Domestic Sewing Machine Co. from publishing statements to the effect that the exhibition committee of the State Agricultural Society had reported that the Domestic was the best family machine, notwithstanding the fact that the Singer Co. had been awarded a diploma for exhibiting the best family machine and the best machine for manufacturing purposes. In this case the court said:

*

*

Equity, it must be remembered, will not enjoin every wrong. There are injuries done by one man to another which no law will remedy. Telling lies, unless those lies be of a peculiar character, is one of such injuries. *It is a perversion of language to say that the complainant has a property right in the truth of the report. He has, perhaps, a right to the report, but a perversion of the truth, a claim that it is different from what it in fact is, can in no fair sense be called an infringement of his right of property in the report. (49 Ga., 70, 72.)

Laws covering false claims to marks of distinction are found in England, in France, in Germany, Switzerland, Denmark, Norway, Russia, Greece, Bulgaria, Brazil, and Argentina.

It may have been the thought of the framers of the Barkley and Rogers bills that section 20 of the merchandise-marks act was inapplicable in this country, as American manufacturers naturally do not claim to operate under "royal warrants." The same evil, however, has been met in other countries where the laws have been extended to include false claims to medals and other marks of distinction. I have a very distinct recollection of hearing some manufacturers complain that certain competitors advertised very widely that they had taken the first prize at, say, the San Francisco Exposition, when as a matter of fact the prize that was awarded had no relation to the quality of the goods exhibited, the prize being given because that manufacturer had made the best-looking exhibit. Although it had nothing at all to do with the quality of the goods, they did advertise that they had taken the "prize" at, we will say, the San Francisco Exposition. I have heard of more than one case of that kind. Such statements contain all the vices of a half-told truth.

Mr. WHITTIER. Mr. Chairman, if Mr. Macdonald will pardon a question

Mr. MACDONALD. Yes.

Mr. WHITTIER. I am in entire sympathy with everything he has stated, and I want to point out to him the fourth paragraph of sec

tion 5 of the Rogers bill, which seems to me to meet the point he has just made.

Mr. MACDONALD. Possibly I have overlooked that.

Mr. WHITTIER. That paragraph reads as follows:

Fourth. Or if there is published, issued, or circulated concerning, regarding, or in any manner pertaining to said article in any newspaper, magazine, book, pamphlet, circular, or other publication or advertisement any false, fraudulent, misleading, or deceptive words, statement, representation, symbol, design, device, or trade description as to any of the matters or things stipulated in the foregoing subsections of this section.

Mr. MACDONALD. What would the "foregoing subsection" relate to?

Mr. BARKLEY. That related to the definition of misbranding. That same section 5 is subsections 5 and 6 in my bill. The previous subsections referred to are those describing what constitutes misbranding.

Mr. MACDONALD. And that would cover a situation of this kind? Mr. BARKLEY. The intention of this subsection is to relate back to all the definitions of misbranding and to punish any misstatement in any publication, magazine, or circular that is not attached to the article itself, but is written about it. Now, whether that would cover this objection or not, I do not know.

Mr. MACDONALD. Well, it may; it is doubtful.

Mr. BARKLEY. But I am frank to say that that was not the intention of that thing originally. If it is deemed proper to do so, it would be very easy to amend the description of misbranding so as to cover that.

Mr. MACDONALD. There is another section of the two bills-that is to say, of the Barkley bill and the Rogers bill-that is not found in the English act, and that is the section just referred to concerning false, fraudulent, misleading, or deceptive advertisements. Such laws have been passed quite generally by the States. They are found in New Jersey, Louisiana, Minnesota, District of Columbia, Rhode Island, Colorado, Indiana, Michigan, Missouri, Washington, California, Iowa, Kansas, Kentucky, Nebraska, Nevada, North Dakota, Ohio, Oregon, Wyoming, Alabama, Massachusetts, New York, North Carolina, Oklahoma, Tennessee, Virginia, West Virginia, Wisconsin, Connecticut, Illinois, Maryland, Pennsylvania, and South Dakota.

The CHAIRMAN. That is 34 States and the District of Columbia? Mr. MACDONALD. I think it counts up 34 States and the District. The necessity for the use of the words "misleading or deceptive" in a statute of this kind was pointed out in an article appearing in Printers' Ink some time ago. [Reading:]

A simple, straight-out-and-out lie will find few defenders. Nobody is compelled to advertise his goods; if the truth will not serve him he can always keep silent. But there are, unfortunately, fraudulent advertisements which do not contain a single statement of fact which is wholly untrue. They do contain deceptive statements, but none which can be proved untrue * ** It is important to include in the scope of the law those statements which are deceptive and misleading. The statute which omits either of those words is not an adequate law, for it can not reach the advertiser who makes statements with a double meaning, and it frequently will be found inadequate to check the dishonest use of trade terms and other words which mean entirely different things to different groups of people.

Last Friday, I believe it was, something was said about the application of this section to the publishers of newspapers. While I do

not think that this section as it is written would apply to the publishers, it of course would not be difficult to provide that the section should not apply to the publisher of a newspaper or magazine in which such advertisement appeared. This has been done in Colorado, Indiana, Michigan, Missouri, and Washington.

Mr. BARKLEY. This would apply, though, if the publisher of the magazine or circular happened to be

Mr. MACDONALD. The manufacturer himself?

Mr. BARKLEY. Yes. It might apply to a mail-order house that gets out catalogues in which they have each article identified so that you can identify it in their establishment.

Mr. MACDONALD. A newspaper or magazine would be possibly quite broad enough.

Mr. BARKLEY. Yes.

Mr. MACDONALD. The same issue of Printers' Ink just referred to contains a brief extract from an opinion by Judge Aldrich of the Circuit Court of Appeals in the case of Estes v. Ford, 100 C. C. A., 250. He used some very forceful language.

In this case, which was based on unfair competition, Judge Aldrich observed that the first circuit court fully recognized that:

The idea that the members of the public are entitled to know what they are buying and that a purpose to create imitations or similitudes calculated in themselves to deceive, or making false characterizations calculated to deceive, amount to an imposi tion, and that when a deceptive article is purposely brought into competition with the genuine it amounts to unfair competition.

The whole trend of modern decision is in the direction of making it clear, whether in respect to food, drink, or wearing apparel, that placing adulterations and imitations upon the markets, with the purpose of deceiving members of the public who buy, as they do oftentimes upon casual inspection, into buying something for what it is not, is a business which is not countenanced by the law, and when with such deceptive purpose things are brought into situations of competition with the genuine that the competition is unfair. * Such rules of law are in a large sense based upon the idea that the public in its relation to business and business in its relation to the public, in respect to the necessary and useful articles of life and trade, ought to have such protection as results from fair competition.

* *

A question was asked the other day about the prosecution of a dealer in the District of Columbia two or three years ago; whether it was under the common law or a statute. That, as I recall it, was the first case brought up under the new "false advertising" law in the District of Columbia. (Act of May 29, 1916.) That case, I believe, resulted in a fine and in a subsequent case there was an acquittal.

The CHAIRMAN. Was that one of the prosecutions of the Fair Trades League?

Mr. MACDONALD. That, I think, was a prosecution by the Fair Trades League, the Southwick case, if my memory serves me. There is one phase of this whole subject that may cause no little difficulty and that is, when you are trying to determine whether or not the description is deceptive, are you to accept the knowledge or understanding of the retailer or of the consumer? There are some names and some terms in trade fully understood by the retailer or dealer that are not at all understood by the consumer. For example, I understand that the retailers generally (I may be mistaken in this and I do not want to wrong anyone), that the retailers understand such terms as "natural wool," as used in regard to underwear, do not mean "all wool" but simply mean "part wool." On the other

hand, and I think I am right in saying this, the average purchaser or consumer who sees such advertising in the papers, or such labels on goods, naturally assumes that the term means "all wool." In determining whether or not a statute of this kind is applicable, you will have to determine what standard you are going to adopt; whether the retailer only should understand the term, or whether the consumer should also understand it.

In that connection there were two interesting English cases, one, Meadows v. Catesby & Sons, 107 L. T. Jo. 440, in 1899, where it was held by a metropolitan police magistrate, a false trade description to describe a mattress containing 60 or 70 per cent of jute or hemp as a "wool" mattress; and the Leicester case reported in the London Times of October 20, 1893. In the latter case the goods were marked and described as "natural wool" and it was held by the magistrates at Leicester to be an indication that the goods were all, or substantially all, woolen, notwithstanding the fact that an allegation was made that it was the custom to call cheap mixtures of cotton and a little wool "natural wool." We might very readily be confronted with some difficulty in this country unless we know what standard is going to be used. I can conceive of goods that are sold by one manufacturer to another manufacturer that are never intended for general public use, where buyer and seller both fully understand the trade terms. On the other hand if these goods are sold to the public through the retailers, the public may be deceived by reason of the fact that they do not understand the trade terms. Coming back to the "natural wool," I dislike to dwell on "wool," but it seems naturally to come into my mind-I can understand how the retailer, knowing that "natural wool" does not mean "all wool" may advertise the goods in the newspapers as "natural wool" and he feels quite justified in so advertising although he well knows that the public does not know that the goods are not "all wool." This simply illustrates the necessity of knowing in advance the standard or measure to be applied in such cases. In my opinion, if the ultimate consumer is to benefit by this legislation, the knowledge or understanding of the ordinary consumer, as distinguished from the dealer or expert buyer, must be the standard. In order to avoid any misinterpretation it might be well to cover this matter specifically in the law.

Another phase of the question that has occurred to me is the habits. and intelligence of the consumer. In cases involving the passing off of goods the court will consider the intelligence with which the ordinary purchaser, buying with ordinary caution, will use in buying the article involved. Nims in his work on "Unfair Competition" refers to the average buyer as follows:

He is careless yes, possibly, but if that is the way the average man buys that sort of goods, he may rightfully demand that the law protect him from deceit when he so purchases. There have been cases which have held that a buyer has a right to be careless. He certainly has a right to be careless where the article involved is sold at a very low price and is habitually bought by all with little or no inspection (p. 591).

For example; you never examine the label on a box of matches with the same degree of care you would if buying an article of much greater value; you simply pay your money and put the box in your pocket. Yet, here is a box of matches-"impregnated safety matches" which has on the bottom a Swedish word ("Sakerhets

Tandstickor") and then in small letters is "Made in Nippon." Now, I am sure that a great many people do not know where Nippon is, but they are quite familiar with the Swedish matches and know that Sweden produced good matches and they think they have a box of Swedish matches. Personally, I have a prejudice against Japanese matches and acquired that prejudice some time ago when I found these safety matches to be too safe. Many would not light at all and I do not want any more. I am quite satisfied with our American matches. Here is a box of matches made by the Diamond Match Co. which is stamped "Made in the U. S. A." Then, on the other hand, take the Swedish match; undoubtedly a fine matchSweden acquired an enviable reputation in putting out and selling good matches, and during the war the Swedish manufacturers warned the public that they were not getting matches that were up to the Swedish standard. Here is a box with the warning: "War Quality." Then comes along this Japanese match with that Swedish word, the box marked in small letters "Made in Nippon," but sold, I would say, on the Swedish reputation. Nobody ever stops to look at the explanatory words because it is an article of very small value. Some one, Dr. Alsberg, I believe, said something the other day to the effect that an act of this kind might lead to the adoption of many fanciful names which tell nothing in themselves. I think that is undoubtedly true, but I do not know that it is anything that can or should be prevented or that it does any great amount of harm. I am not a trade-mark or a patent lawyer, so I will not attempt to do more than to touch on the trade-mark law, but I believe that a trademark will not be granted for the use of a descriptive word. For example, on an oil that is intended to flow slowly they will not grant a trade-mark on the word "Slowflow." Now, with an act of this kind a manufacturer in seeking a trade-mark is confronted with this proposition; he can not take a descriptive name for a trade-mark, and under the Barkley or Rogers bill, he can not take a misdescriptive name, but still he wants a trade-mark and is going to seek something that will be neither a description nor a misdescription and the natural tendency will be to adopt a fanciful trade name that will tell nothing at all.

Touching on this trade-mark law, there is another proposition that is very interesting to me. There are probably trade-marks that are misdescriptive. I do not like to go back to wool, and in using wool as an illustration, I am not casting any aspersions on the wool manufacturers at all. I am merely using wool as a convenient example. If the trade-mark "Newool" is used on reworked wool, we will consider for the sake of argument that it is a misdescription and that it might, even as a trade-mark, be considered a violation of the Barkley bill. How does the manufacturer stand? He has had the privilege granted by laws of the United States to use that name and to exclude all others from the use of that name, and then he is confronted with another statute which declares that he must not use any name that is a misdescription.

Now, does the Barkley bill or the Rogers bill prohibit the use of that trade-mark? I do not know. If it does not, then the man who already has a trade-mark that is a misdescription has an advantage over the manufacturer who has not yet secured his trade-mark. In England, I think, they get over that difficulty by expunging such