*1 273 аpplies represents de District Court or who because rule Counsel ably atten- appeal merely briefed and instant case call fendant on but to this argued tion consecutive sentences the case behalf. on his Counsel’s fact that at- infrequently third invite belated collateral contention is that the second and upon were de tacks some counts of an indict- fatally counts information fective, upon information, general the sentences those ment or while a sen- based juris present tence less counts therefore for lack or concurrent sentences void defendant, diction, temptation al regard whо in that and are and that ordinari- ly ready the first equally the sentences under a mat- served effective. We think this is counts, re be ter might and second trial courts well now entitled to federal agree keep pleas guilty, leased. We second and third in mind in accepting defective, particularly hastily of the information were prepared counts informa- agree they, we cannot either tions cases but in- where defendants waive them, subject collateral attack pleas, were or are dictment and enter such in order often jurisdiction to to escape or that court was without the clutches the authorities of challengеd. This impose now the sentence States whose laws the defendants States, 8 v. United case is ruled Keto also violated. Cir., 247, 251, Rowley Unit v. F.2d 189 appealed order from is affirmed. Cir., 949, States, It is 8 F.2d 951. ed 191 exceptional only circumstances under or informa sufficiency indictment of an subject of a may collateral
tion made ade we have conviction. This
attack after cases cited.
quately out in the pointed Court the District
It is clear sen should be intended that the defendant PEN CO. v. FED- HOWARD HUNT C. his years’ imprisonment upon tenced to five ERAL TRADE COMMISSION. court, If im plea guilty. instead of No. 10479. count, separate under each sentence posing a consecutively, served sentences Appeals, United States Court imposed five general had sentence of Circuit. Third years upon five sentеnce of years, Argued 49, Nov. 1951. concurrently, count, each to be served 27, appeal May problem presented would Decided arisen, count not have first have sustained
the information would years’
general imprison five sentence general or concurrent
ment. A sentence in indictment or based
sentences several counts containing
formation enough good counts
valid if there sustain or information indictment We refer to imposed.1 sentence combined Judge, part. Hastie, by way rule -of criticism of Circuit dissented States, 140, 1173; 619, 17, 142 Pierce v. U.S. 40 S.Ct. 63 L.Ed. 1. Claassen United 239, 966; 252-253, States, 146, 169, 252 Evans U.S. 12 S.Ct. L.Ed. v. United 35 542; States, 205, 584, 595, 14 64 L.Ed. Brooks v. v. United 153 U.S. 40 S.Ct. 432, 830; States, 441, 934, Evans 267 U.S. 45 38 L.Ed. v. United S.Ct. S.Ct. United Hirabayasbi 699; 939, 345, States, 608, U.S. 38 L.Ed. v. United 14 S.Ct. 69 Sylvester 839; States, 81, 85, 1375, States, v. 320 U.S. 63 S.Ct. United L.Ed. 1774; States, 262, 267, 580, Pinkerton v. United 42 L.Ed. L.Ed. 170 U.S. States, 641-642, 1029; v. Debs United 249 U.S. 328 U.S. S.Ct. 566; 1489; States, S.Ct. Gantz v. United 63 L.Ed. 90 L.Ed. 498, 501, States, 127 F.2d v. United Abrams U.S.
“(3) Using word ‘Iridium’ or Tipped,’ words simula- ‘Iridium thereof, con- or in tion either alone *3 junction words, desig- with other nate, foun- refer to any desсribe or in fact tain which are not tipped with the element iridium. “(4) Using the ‘Waltham’ as word imprint an on inor connection with any points; the sale fountain of any representing or otherwise respondent’s fountain products are the of the Waltham Manufacturing Company Watch Waltham, Massachusetts.” Harvey Lechner, Philadelphia, (Syn- Pa. many years petitioner, For a New Pa., Lechner, Philadelphia, & Al- nestvedt Jersey corporation, making has been in- Aurich, Philadelphia, Pa., fred C. on the expensive fountain at its Cam- petitioner. brief), for den, Jersey, New plant is and one of the Truly, Washington, (W. D. B. C. T. largest prod- of such J. manufacturers. Its Counsel, Cassedy, Kelley, Gеn. W. steel which are ucts are made stainless James Counsel, C.,D. Washington, Gen. Asst. electroplated coating gold with a then Trade Commis- Federal brief), Concededly and alloy. have been are these sion. shipped by and to manufacturers sold pens all and assemblers of fountain over BIGGS, and Mc- Judge, Chief Before export trade. and United States Judges. HASTIE, Circuit LAUGHLIN Section 1 McLaughlin, judge. circuit objection to Petitioner manufacturer, pen point Petitioner, form of the above order but Section 1 of set an order seeks to aside asserts is no basis for the section there 29, 1951 March Commission of because, it, according to for some four сease and it forthwith which ordered years prior filing from: desist only February, done that use through the Representing, “(1) plainly permissible is under the which sec term pen points of the on fountain petition rejected tion. The Commission T4 Gold or K. T4 Plated’ Kt. Gold assertion and found that er’s mark, that or Plate,’ other term any or represent “has continued to or covered points are coated such points plated gold are 14 karat when in thickness alloy substantial an fact are coated with such a thin cov by weight than less 14/24ths a minute ering quantity gold of such fact; or not the such gold, when alloy to not gold as constitute karat any manner misrepresenting plate as that term is understood gold coat- quality of quantity or purchasing public”. The foundation of any fountain covering on ing statement and of Section of the or points. representation der is that the “14 Kt. Gold manner, or “14 Gold Plate” Plated” K. means Representing “(2) “ foun- in Section by implication, said such directly alloy made of are coated or covered alloy with an tain fact thickness are in of substantial not less when than weight gold,”. mere- and are That materials other made 14/24ths alloy complete representation. single with an covered For a ly coated or properly designated to be as "14 K. gold. ed of Stand- Gold Plate” it must be сovered National Bureau alloy less than 14 of substantial ards were found be coated karat requisite thickness. either fineness with a If a thickness of approximately missing it is not entitled or thickness 3.6 millionths be, description. (.0000036) to such would it Nor to less than two millionths course, present cir- though (.000002) inch, not vital of an al- loy cumstances both and thickness if fineness had a value five approximately only question per our gross pen points. absent. cents rec- coating review of 1 is whether on the on the *4 ord as a whole evi- there is substantial so tested consisted of a such minute support finding of sec- quantity dence in of that the that its actual karat fineness tion. could not be There is determined. respondent’s evidence that methods of findings of set the Commission are gold plating pen points -their have out below which generally deal with varied from the time of manufacture necessity gold of a substantial thickness of peri of points so tested.” plating of not less than a fineness of karat on fountain marked.1 so It pen is true points petition- of pen petitioner’s points of toAs certain er marked “14 Kt Gold Plated” or “14 stamped on them had that was found K Gold Plate” by which were examined composition and representations their as to the Bureau of Standards were from the repre- typical of the Among and quality. period prior Apparently to 1939. they were “14 following: and are the were sentations manufactured in 1937. The testimony of K Plate”. “14 Gold Kt Gold Plated” and president petitioner of shows that found: then The Commission had continued at of with least one its ob- jectionable imprints by respondent Sep- of in- to sometime “The use type imprint T4 tember That scriptions T4 Kt Plated’ and not Gold only, specified gold alloy of similar the fineness of the K and others Gold Plate’ herein, pen covering point by set used but import meaning not out its legend that capacity de- was “Gold Plate” tendency and to has the pub- aifirmatively Plated” purchasing “Gold indicated mislead the ceive and gold alloy covering that that said fountain because of lic the belief into gold present plated alloy the amount of the points with on pen so marked are pen point was entitled be gold amount of karat to labeled a substantial Plate” In “Gold “Gold alloy thickness. truth Plated”. Petition- of substantial April, er’s claim that respondent’s fountain at least fact, in- since consultant, its plated (when Davidoff, are not with points so marked hereinafter mentioned, began his gold, alloy and association amount with a substantial “ * * * points firm) is not it has plating consistently on the said stamped the ‘14 thickness. Its said term Kt. Gold substantial Plated’ or а only coated with ‘14 K. Gold Plate’ on so marked are points which a thickness less than are covered with an gold of ‘substantial (.000007) of an inch. thickness and less by millionths not than seven 14/24ths ” * * manufactured, gold’ points weight implies said Certain of a will- prior ingness prior April, that by respondent to 1938 test- concede of, purposes gold karat standard fineness eorrosion. plating Fourteen One of the object representing protect that an so marked fountain is to alloy which contains from of an them such consists !4kths eorrosion. Fountain by weight. plating pure gold Gold of 14 which are covered with a sub- gold plating is the lowest karat stantial karat fineness fineness' thickness of of a successfully gold will resist fineness of which not less -14 than karat have ink, great appeal consuming public substantial effects A corrosive plating gold : the.appearance, fineness because of thickness intrinsic value necessary 14 karat' and known' resistance not less than to corrosion of the ' ptn points gold. protect from fountain plated company not the Hunt “ its so marked were we have time.” less maintained it a substantial thickness proof those There is no on alloy. credible the case than 14 karat As to peti- behalf of of Standards or otherwise that tested Bureau changed objectionable hаd from record tioner there is substantial evidence during method of coatings gold running using a thin they had thin coat They period September, April, inch. from to 3.6 millionths of an from 1.4 coating 1939 when even Davidoff came in as consultant. did sufficient hardly expected could their karat fineness Commission could accept Davidoff’s statement the usual tests. as to what determined prior went on to his association with repre- seriously disputed It is not company. Regarding presence the actual “14 “14 Plated” or sentations Kt Gold of from six to seven millionths an inch K purchasing Gold Plate” mean to the petitioner’s points, David- public so marked cov-f off does not еstablish this accurate ered with a substantial thickness of *5 scientific test as such those used the less of not than 14 karat fineness. Bureau of Standards when it had examined expert to a One Government testified trade pen petitioner’s points and had found them must gold standard that the be insubstantially dispos- coated. He readily minimum millionths from a of seven of problem by es saying whole that gold they can call an thick before inch question ais of mathematics. “We have question electroplate. The of what would weight the area and gold, gold thickness of a substantial constitute density gold, just simple and there is a plating this court gold in is not before relationship to all of those which relates petitioner contends for the reason petitioner’s sole factors.” Davidoff witness, Davidoff, testimony of its increasing the quantity to it witness as engineer, consulting a chemical shows that operation. gold plating in its His mathe- April, thickness of its was based on the as- matical calculation point coating substantially has been from gold sumption that cents worth of fifteen six to seven millionths of an inch. Thus spread nibs would gross each on affirmatively attacking a instead stand- nibs. In fact the equally over all of the thickness, petitioner substantial as- ard of pen points shows that where record it has met serts that that standard consist- electroplated by peti- in the manner used ;mly since 1939. 10,000 tioner, plated with about April 11, 1949, Davidoff, on testifying thickness of varies simultaneously, engaged said that he had as a been con- place place given pen point a from to on metallurgical sultant for chemical and pen point point. from and also varies to processes approximately years.. twelve makes cal- What Davidoff’s mathematical employed He said that he had been as a suspect additionally culation the testi- petitioner approximately consultant petitioner’s president mony of that the act- years; spent quite that he had ten bit gross ual value of on standard size plant; spent many days time in the twelve of nibs around cents. Even if training the plating there foreman and had spread equal- could be that amount plating. standardized methods of He stat- nibs, gross could re- ly over never goes up plant quite ed he still in a thickness of sult substantial seven and does a often considerable volume of inch. millionths an petitioner’s problems work on laboratory relating president petitioner the plating to field and was shown corrosion. separate to He said six seven Commission exhibits consist- millionths two inch each. plating ing group on the of six The first stamped “Duripoint amounted a tenth of a cent of Kt. Plate” Gold stamped fifteen per nib and cents worth on each and the second six “Warrant- gross nibs. He Tipped said that this Kt. standard ed Durium Gold Plate.” prior in effect pens had been his these exhibits association both were in- substantially gold The witness coated. “ * * stated that as to the group, first The factual basis for section of particular imprint according to our order is clear transparently from Com- September records was discontinued mission’s findings of facts. There it said: He second regarding 1938.” said ex- “Paragraph In the Five: course and hibit, reading marking “The ‘Warranted conduct of the aforesaid business for Tipped’ etc., Durium was discontinued years prior several respondent 1938.” It the fact that did the nowhere stamped on certain of its testify witness the manufacture of inscription ‘14 K’ or ‘14 Kt’ large such objectionably their thin type and stamped underneath the in- gold coating was itself so discontinued. scription ‘Gold Plate’ ‘Gold Plated’ From all of foregoing, we think type so small inconspicuous as there was substantial evidence the rec illegible. almost On certain of ord justify as a whole to the Commission’s these inscriptions ‘Gold finding rep continued Plate’ or ‘Gold stamped Plated’ were resent that are 14 karat so far down the shank of gold plated when in fact are cоvered as to be hidden view when the gold alloy a minute quantity such point was properly fixed in the barrel gold plate as 14 karat not to constitute pen. The use by fountain re- purchasing is understood that term spondent inscriptions in this Corporation v. public. Camera Universal tendency capa- manner has had the Board, 340 U. Relations Labor National *6 city pur- to deceive mislead the amd 456. Our 95 L.Ed. S. S.Ct. 71 chasing the public into that said belief have case. We no job retry to is not pen points so marked were- fountain made different view from right to substitute alloy gold. In truth and' long as we have Commission so that of the pen in points were made fact have substаn findings that its determined other materials coated with an alloy of in the whole record. See the support tial gold. Act, 15 Commission U.S. July 31, respondent “On en- which, providing judi in 45(c), C.A. § agreement into an with tered the Com- order of a cease desist cial review mission desist to cease and from con- Commission, findings “The directs the tinuing pen points its fountain mark facts, sup if as to the of the Commission having capacity manner the or evidence, conclusive.” by shall be ported tendency to the belief cause that the- strong there is evidence seen As we have points 14 gold are of karat solid alloy gold the examined the when such is not the fact. Since thаt which would points the thickness agreement, all manufac- “Gold use of the term Plate”. the warrant by respondent tured marked with the justifies 1 of Section the of itself This inscription ‘14 K Gold Plate’ or ‘14 Kt may be some inference there While order. Plated,’ Gold the said numerals and' the fineness the asserted letters thereon been of have the same- point lacking, that is essential also size, and the words ‘Gold Plate’ or- 1 and upholding of need not the Section placed Plated’ been ‘Gold have suffi- further. action of the be discussed ciently base pen- far the of the as set out in Section of the Commission always clearly as point visible- appropriate under order is existent n marked when the so was as- ques- We do not reach the circumstances. completed pen. in the sembled fountain would the Commission whether tion * ***** entering discretion in its sec- abused * * * “Paragraph Seven: petitioner had order tion of the “By alleged, placing discontinued the the hands fact, as unlaw- of manu- years filing four before the and assemblers of facturers ful fountain... points complaint its pens stamped.: fountain aforesaid, respondent falsely inscribed as representing that its has are furnished said manufacturers made 14 karat gold.
assemblers with means deceiv- major premise, Petitioner’s from which ing public that cеr- into belief objections flows all of its section of to this tain of the said fountain order, is that Section deals with un- gold, karat genuine were made of pen points, petitioner marked having de- * * (Emphasis supplied). cided that Section 1 deals with Typical argu- are marked. petitioner contended before the ments which against are raised this sec- that, Commission as in inasmuch it entered tion, entirely substance, which are without stipulation to a with Commission is the one that the section would be violated prior complaint issuance if made and un- marketed an agreed this matter wherein it to cease and pen point marked made stainless stеel from representing desist that its other base which is metal coated or covered gold, are of solid and inasmuch as gold “because such ar- an unmarked complied agreement, with that order to superficially ticle would look like cease and desist should be entered petitioner might therefore regarded as representation. In to such Commission as implying, very from the color of fin- explained that, the Commission answer product, ished that was made of al- 2: legal basis loy.” That there no merit to this con- re- found that “The Commission fully tention demonstrated the Com- represent continued spondent has express finding mission’s that “The evi- arе karat dence record is not sufficient to sustain coated in fact are plated when allegations covering such a thin such a * * * likely to be public to not quantity Of minute deceived, by golden color misled gold plate karat as that constitute pen points, falsely believ- into respondent’s purchasing is understood term either ing made that such Commission public. the view of the In *7 petitioner gold plated.” Again alloy or are representation false respondent’s the “merely” says is most in- the word that plated 14 points are with pen that its may to a have reference represen- definite and that prior false its karat “ * * * coating so thin thаt a pen points are made tation create pen so similar as resistant.” It is karat are is not corrosion 14 respondent whether the as to a. 2 all plain doubt Section is not concerned at that prac- the may future resume not the coating the with thickness pen falsely representing that its tice of points. petitioner’s 1 pen on Section gold. 14 karat The are made of points governs subject. that order Section the that finds an or- therefore Commission resumption petitioner’s prohibits 2 respondent to requiring cease and der falsely practice representing that former its falsely representing that desist made 14 karat gold, are its points are made of an that alone. The section is not too public.” interest in the purpose broadly for its worded we do fairly susceptible petition- not think adopted In this court attempted construction er’s (cid:127) it. Section 2 of the order construction of legal totally ignores factual and by the detailed Commission. as above basis entirely complaint alleged petitioner’s think the Commission was
We The tipped” finding stamped in its that an order use of words “Iridium reasonable language in the of Section 2 is in on certain of its framed constitutes a public. representation ar- said interest Petitioner’s are studiously any quаrrel tipped comparatively avoid with a with rare and guments ex- prohibits extent pensive element known order iridium and petitioner’s points .resumption petitioner’s pen former actually none are tipped. peti- so answer no starting point admitted that without that concession. tioner had continuing used and to use Indeed speaks the word Perloff for itself. tipped” words “Iridium on its v. Federal Commission, Trade points, although fact its not F.2d 758. Thus the use of the word tipped with iridum. defense, Its sole af- “iridium” equivalent petitioner’s or its firmatively stated, pen points, was that the words “Ir- secondary absent meaning idium” tipped” or “Iridium when used in by petitioner, contended for it and is was. to the “ ** * connection inherently false and misleading pub- acquired, by acceptation common lic and for that tendency reason has the many decades, a wit, secondary meaning, capacity to mislead pub- the purchasing ¡hat tipped are with metal of lic into the petitioner’s belief unusual hardness and wearing quality.” tipped with iridium, when that is. fact. It is of no moment, in this A high degree proof es proceeding public interest, that what sential in establishing the defense of sec purchaser gets tipping material ondary meaning before the Commission. petitioner’s used on pen points may be as very wording petitioner’s аnswer serviceable as or almost as serviceable as recognizes that, in the words of Mr. Jus “ * * * iridium. “The prejudiced consumer if Cardozo, tice it had to show that upon giving thing, an order for one he is acceptation common description, * * * misused, supplied something else. In. acquired once secondary matters, public is entitled firmly get anchored meaning as as the first chooses, may Trade though Commission v. Al what it one.” choice 67, 80, Co., 291 goma by caprice U.S. S.Ct. per- dictated fashion or prevail It could if haps 78 L.Ed. by ignorance.” Federal Com- “ quality Co., its evidence was supra, Algoma mission v. 291 U.S. at establishing meanings with short of two page 78, 54 pagе prej- S.Ct. at There legitimacy by of com equal titles force udice also to other manufacturers of acceptation.” Ibid. We think that mon points who, shows, pur- as this record petitioner failed to establish the fact of sec tipping pe- chase the same material as does meaning ondary governing under those titioner but who do not their points, mark principles. Certainly the Commission was word “iridium.” with the Corp. Na justified, Universal Camera v. petitioner’s testimony At -most with re- Board, supra, 340 tional Labor Relations spect secondary meaning is that in the page at page at U.S. pen trade, manufactur- “ *8 * * * did, con finding, as it and ers distributors of have suрported by is not the record and tention come to understand that marked respondent’s use of these terms to des n in tipped “iridium” are not fact with that products its is ignate and describe errone tipped synthetic element but with a al- misleading.” ous loy containing no iridium.3 Petitioner uses very forms, Alloy From the defense of second in two No. ary meaning, the Commission was free to which sells for about an $85 ounce and Alloy that the word “iridium” No. about recognize has a an ounce. $80 At the i.e., meaning, an the Commission primary unusually hearing, hard time of the testi- family.2 mony platinum of the Petition was iridium sold for element $165 an before the argument er’s Commission had ounce. Wagnalls’ interesting is defined in Funk &
2. Iridium It note that one of Dictionary (1944) witnesses, petitioner’s Kahn, New Standard as fol- Julius M. silver-white, hard, general manager lows: “A brittle me- treasurer and assistant belonging platinum Kahn, Ino., tallic element of David understood that a very group, percentage with the members of which small of iridium it was ac- alloyed tually present synthetic alloy. in nature.” found His reportedly largest producer firm is pens of fountain in the world. “Waltham”, president petitioner admitted that word was discontinued The com years two tipping its before the Commission’s material used for Peti plaint proceeding. was filed in this seller, invoiced to it American Works, “pen tipping alleged Platinum material” tioner in its answer as resuming that that it has intention of “They not as “iridium”. invoice it as practice testimony specific I knowl- but there is no their number so-and-so> edge analysis particular why al- to that effect. no reason even as to the We see loy manager Ameri- if would invoiced.” there had been Commission simply by promise can Platinum testified that his com- have been bound Works pany petitioner. Particularly did call tipping material “iridi- is this true merely They “tipping petitioner’s um”. refer to it where claim before the Com only product material”. The time their mission and before this court has been that any ever called guilty deception “iridium” was once was not in so “ * ** typist. marking mistake a She because it was act clearly ing billed it once as ‘iridium’.” He dis- on instructions from its customer. Such posed any thought proper patently that it was a claim is without merit and was practice tipping to call his many years material “iridi- so for before who 1941. One when, um” testifying places competing about a in the hands another a means of product, he “I said: know of our that one competing un consummating a fraud competitors, put percentage small he Trade of the Federal fairly violation it, say, per two cent —I am iridium in about guilty of a vio is himself Commission Act myself just could call not sure he Trade Commis Federal lation of the Act. — Now, ‘'iridium.’ didn’t want to camou- we 258 U.S. Hosiery Co., 1922, sion Winsted v. put (Em- we flage anything, didn’t in.” any L.Ed. 729. phasis supplied). Act, 15 U.S. Federal Commission Trade 4’5(b), gives the Commission C.A. § principally the testi- Petitioner relies on any complaint whenever right file mony largely of witnesses inter- who were “ or is us person, has been etc. practice perpetuating ested in of label- competition method of ing unfair ing tipping “iridium”. In ad- material * * supplied). Petition (Emphasis president, to its of at least dition executives complain or may not heard to er inex- of the chief manufacturers of three method from an unfair restraining der pensive pen points testified on its behalf. peti same time competition when at the prac- All followed identical latter right to it. insists it has the tioner pen points “Iridium marking tice of their Commission, Galter v. tipped” tipping though used the same 186 F.2d may petitioner. It materials as does the testimony that their sufficient estab- affirming the will be entered A decree pen trade, among lish that manufac- of the Federal Trade Commission order pen points, turers and distributors of commanding to its obedience terms. “iridium” has in fact come to have a word secondary meaning. knowledge But their HASTIE, Judge (dissenting Circuit *9 imputed public4 is not to the and we part). say public petitioner cannot that as to judicial approval being ac- In this case is proved requisite degree to the of cer- of the Federal Trade corded a 1951 order secondary tainty meaning it for which hearings begun in 1943 Commission —after contended. completed in 1949 on a 1943 and Pen —which in the main directs the Hunt from objection cease and desist manu- Company
Petitioner’s sole practice facturing practices not shown to have been its former section that of manu Apposite, since the 1930’s. there- facturing indulged inscribed with the Commission, Cir., 4. Masland Duraleather Co. Trade 26 F.2d eral v. Federal Commission, denied certiorari 278 U.S. 34 F.2d 737; Quartered 73 L.Ed. Indiana Oak Fed- Co. v. since
fore, practice of a mem- allegedly* discontinued is the recent remonstrance had more agency recent that the involved in paragraph», ber Commission * * * been, problem at the one already “tackled order. But it has [a] Grocery shown tomb, that instead of the womb”. See there is no evidence that the- misrepresentation Association, 1948, 44 F.T.C. charged paragraph Distributors untime- one concern about was continued 1217. Similar after 1938. public underlies negativing liness interest agree I par- the court that the third my unwillingness judicial sanction to lend agraph of the order be sustained and should provisions of the Com- of the four to three еnforced. present me mission’s order which to seem The fourth paragraph prohibits the use merely obituary denunciations rather than of the word pen points. “Waltham” on It this con- curative interventions. But since disputed imprint ception that “Waltham” of what is funereal and futile must placed pen points formerly on certain postscript dissenting also embrace the manufactured Company Hunt Pen expressed, my which views will be pursuant and specifications par- to the of a very summary. stated brief ticular customer who marketing foun- paragraph The first Commission’s pens tain under that name which he had order directs the manufacturer to cеase registered as a trademark. It is to be re- representing desist from that its membered that Hunt does not manufacture carat of fourteen are covered complete pens but rather manufactures rec- thickness. The fineness and substantial points for sale assemble and to those who testimony the man- contains sworn ord pens distribute fountain under whatever pens have 1939its that ever since ufacturer name. is no indication that the There Wal- representations so coated been imprint except tham ever was used at a proper. been accurate fact have of that particular specification customer’s or that contrary offered entire case Indeed, used all been at since 1941. burden bore'the government, question stipulated long customer in analysis some proof, was that respondent long- before with Commissionthat it would no by the manufactured “14KT, plate” re- stamped imprint market under 1939 and er “Waltham” scarcely inconsequential and only an vealed any- suggestion there is that it or no coating. There is gold wash measurable likely one improperly. else is to do so had ex- government that the evidence There is no indication Hunt intended point manu- single pen tested amined or suspected deceptive anything when it respondent after 1938. In factured complied with request the customer’s circumstances, was not I think there these pens mark his regis- with the name he had record the whole substantial evidence suggests only tered. The .Commission one con- practice had been offending possible apprehension basis for might Hunt con- It seems to be beyond 1938. tinued wrongfully at some time imprint “Wal- practices, unless pre-1939 ceded pen points. tham” on The Commission jus- thereafter, afford insufficient continued that, out although company says Com- paragraph of the for this tification does not and will not use im- order. mission’s print, it at the same time claims that it act- innocently years ed ten pro- ago when it filled a of the order paragraph The second customer’s order for with that representations hibits imprint. On this basis alone the Commis- distinguished gold, as carat supplier sion reasons con- that if government does not metal. plated base *10 turpitude confess willful 'practice wrong, this re- al- objectional cedes believes, though it stipula- as the pursuant to evidence indi- gard discontinued cates, at that was worst the more than three innocent in- manufacturer tion of strumentality of complaint wrong, another’s present there before years may danger that it do pro- willful wrong for its in the. justification sole filed. sequitur. But, non similаrity future. long scription now
283 great lee- give the Commission would I danger deciding when there is way there may repeated. But
deceptive act show something record should be pub- danger when it is basis sole practices.
lic When interest in discontinued proscribed practice discon- has been years the Com-
tinued before apprehension seems
mission’s of renewal foundation,
clearly I a court without think accept judgment of the Com-
should Cf.,
mission or enforce order. Winston 961, F.T.C., 1925, 3 cer- Co. Cir. F.2d v. 3 denied, 19, 555,
tiorari 70 269 U.S. 46 S.Ct. 409; v. Train- L.Ed. F.T.C. Civil Service 1935, ing Bureau, But 6 Cir. 79 F.2d 1940, F.T.C., 2 Cir. Ass’n v. cf., Educators Cir., denied, 2 rehearing F.2d 562; F.2d 72, modified, F.2d Son, & 7 Cir. McLean A. v. F.T.C. denied, 912-13, certiorari
84 F.2d
We
TRAVELERS
No. 13856. Appeals Court of States
United Circuit. Fifth 12, 1952.
June July 7,
Rehearing Denied Vance, Texarkana, Tex.,
Robert S. appellant. Schwartz, Hallettsville, Tex.,
Armond G. Tonahill, Jasper, Tex., appellee. H. Joe HOLMES, BORAH, RIVES, Before Judges. Circuit HOLMES, Judge. Circuit appeal judgment This is from a against appellant, appellee, in favor of rendered Compensation under the Workmen’s Act of Texas, Vernon’s Ann.Civ.St. art. et seq. jurisdiction upon rests solely