Schwegmann Bros. Giant Super Markets v. Eli Lilly & Co.

HOLMES, Before STRUM and RIVES, Judges. Circuit Judge. Circuit RIVES, opini Court delivered The District an able enjoined appellants on1 and ing products from sell below the mini pursuant mum retail sale fixed Fair Trade Louisiana Law.2 The essential Lilly Company brand name.” Eli Act No. .13 of 183G. & Super Markets, D.C., provides Brothers Giant Tlio law in aubsrance that no F.Supp. relating 269. the sale of a com- modity mark, bears the brand Louisiana Stain tos Annotated —Revised or name of the and which is in tea of iba tu Title 391 to Secs. open competition fair and with commod- original following Act bore the general produced ities of tlie same class title: protect orliers shall violate To law of ‘‘An Act trade mark own- Louisi- containing ers, against provision public ana that reason distributors and the injurious practices uneconomic shall not be resold qual- distribution of stipulat- articles of standard less than ity distinguished mark, under a pro- ed under such contract. It further clause, dispute. self-defeating facts not in and stem from statu- provisions. appellee’s tory fair trade concede that the by contracts entered had been established Law, toAs the Louisiana Fair Trade Fair in with Louisiana into accordance appellants say proc due that violates the Law; appellee’s products were that Trade ess clause of the Fourteenth Amendment competition com- open in 'fair and Constitution, to the United States because pro- general class of the same modities pub it bears to no substantial relation others; appellants, that the and duced welfare, lic delegates legis and because it contract, signers of such a themselves not power private lative to The individuals. disregarded willfully knowingly and same contentions with the Fair to under contracts established Illinois, 121%,. Act Trade of ch. S.H.A. other Louisiana and between the seq. rejected 188 et were considered and § also that the It was established retailers. Supreme the United States Court in mark-up, em- appellants had a uniform Distributing Dearborn Seagram- Old v.Co. leaders, in no indulged and ployed loss no Corp., 139,. Distillers 183, appel- predatory practices. The otherwise 109, 81 (hereafter L.Ed. to referred as the- up- squarely planted their defense lants case); Dearborn Old and the same result of the challenge the constitutionality to Pep Boys, Manny, was reached in The Moe Fair Trade and a further Law Louisiana California, Inc., Pyroil & Sales Jack constitutionality of the challenge to the Co., Inc., 198, 147, 299 57 U.S. S.Ct. 81 Act.3 McGuire 122, L.Ed. as to the California Fair Trade Supreme St.1931, 1; p. St.1933, Court has sus- p. 793, The Louisiana Act § validity Appellants’ Fair grounds Louisiana questioning tained for § 1%. conclusive, Law, and its decision Trade the Old Dearborn case .is controls here con- supported the State constitution is seem to be an insofar as assertion va Pepsodent v. Krauss years Co. rious economic texts cerned. that the of ex perience con- The 9 So.2d 303. the fair trade La. since acts Old Federal or both the State or act tend that Dearborn have established that the real purpose an unconstitutional together amount to’ Acts these is not so much to function, protect of a violate delegation good will of the manufacturer clause, process offend commerce protect the due or trade mark owner as it is to willfully knowingly selling contracts, modifies, agreements, and vides and ac- affecting than such min- less such tivities or for- interstate person price, eign whether so sell- imum commerce.” Section 15 U.S.C.A. party contract, ing to is not a such is or 45 note. § competition and actionable unfair According sponsor, Representa- to its damaged. any person tive McGuire: July 14, 1952, Congress, merely permissive. 82nd “The ’McGuire bill is 3. Act says Session, States, effect, It to 2nd Statutes 15 U.S. that Con- purpose recognizes gress rights 45. The of the McGuire C.A. of the States policies stated as follows: to enact and make Act was effective re- purpose pro- specting competition. “It is the Act to unfair That is all rights under the McGuire bill does and that tect the of S’tates the Unit- is all it is regulate Cong.Rec. (May to ed Constitution to their intended do.” States 1952). particularly to internal affairs and more purpose laws, adopt primary The enact policies, to the McGuire change, cases, authorize contracts Act as to future agreements stip- prescribing Supreme minimum or the result reached Court Sehwegmann commod- ulated the resale of Brothers v. Calvert Dis- stip- Corp., extend the minimum or ities tillers U.S. prices prescribed by (referred 95 L.Ed. 1035 ulated such contracts to hereafter as agreements persons Sehwegmann case). H.R.Rep. 1437, who are parties pur- Congress, Session, pp. 1-2, thereto. further 82nd 2nd pose permit statutes, Congressional of this toAct such Code and Administrative laws, public policies apply 1952, pp. 2181, corn- News unconstitutional, signers im- re- competition with other retailer plications opinion con- opinion and, further, tailers, trary.4 supra) (Footnote case Schwegmann obsolete. has rendered practices The trend economic tending no to show fair trade acts are involved Schwegmann hence, protection not concerned more with dis question and, did constitutional protection tributors than with Dearborn. refer to Old interpretation of owner of the trade mark are case related by matters, us, legislative, it seems to Act amended Anti-Trust Sherman 2, 1890, Act, judicial, Indeed, July the title Miller-Tydings Act of consideration. 17, Aug. 1, 209, (Foot of the Louisiana Fair Act of Trade Law 647, 26 Stat. c. Sec. 693, 2, VIII, 690, supra) expressly 15 note 1937, 50 Stat. includes “distribu Title c. respect 1, among pro enforce- tors” with to the classes intended to be U.S.C.A. § say interstate We cannot legislature fair trade tected. that the laws ment of state in- not decided that the was authorized to The Court consider distributors commerce. position was authorize inter- as in a similar of Congress licensees tention or against signers of trade mark brand with a direct economic state enforcement agreement regards or but interest in it as express the sales of the deci- non-signers. To meet that trade-marked or branded article. Whether against said, passed sion, Congress protected, were the distributors to be as has been as well as the or mark manufacturers McGuire owners, matter, us, was a it seems to ad upon rely strongly dressed to discretion and not inconsistency language between claimed subject to review courts. We have no opin- Schwegmann Dearborn the Old judicial concern with the economic and Schwegmann referred to case ions. The law, social wisdom of feature of coerced, being Old whereas non-signers as solely with constitutionality. knowing that willful and said Dearborn fairly im- weakening treated as Whatever non-signers could effect on Old Schwegmann Dearborn been have caused plied assenters. Schwegmann’s frank the State Fair Trade Statute characterization of characterized (cid:127) price fixing, involving price Old State fair trade involving whereas statutes as fixing against non-signers that law had said was is more than off-set, us, fixing price weakening In com- it seems to primarily statute. a opinions, concept against be borne in also broad two it must the va paring the lidity legislative price dealing fixing Dearborn was with assumed mind that For constitutionality, gen the Old Dearborn. “the questions whereas well-settled principle that the dealing only eral of the owner case was with Schwegmann price to fix the interpretation. property no im- at which statutory There is he will inherent prop sell it is an plication Congression- attribute itself, erty protec- and as such against nou- is within the approval of enforcement al should be “Tt remembered that it was fact state authorizes 4. “The not, course, give fixing price state laws law im federal was does designed scheme, approval regu munity Federal absent accommodate. Congress.” give regula page 386, way U.S. lation was to 341 at 71 page regulation provided 746. tion. When state at S.Ct Congress desired “Had to eliminate the resale both those maintenance arrangement not, element consensual who contracted and who did those blanketing regulation permit with re a state and the only and to relaxed fixing respects agree if want one retailer sale ‘contracts ments,’ it, strong measures we feel different the inference is that Con ed gress adopted nonconiractmg group non- to be havo been left —either governed signer by preexisting provision would been includ have law.” 341 U. page 395, page 71 at ed resale would have S. at S.Ct. quotation (Emphasis supplied.) without more.” at in each authorized 341 U.S. page page 390, at 792 dealing with fair trade- Amend in this case Fourteenth tion of the Fifth and 192, to which the 57 S.Ct. at established contracts page ments”. 299 U.S. owner, party. appellee, Tyson-Broth trade mark 143,

page cited Old Dearborn Alabama State Federation of Labor v.. v. Ban- See Ticket Offices Theatre er-United 1384, McAdory, 450, 462, 429, 426, 325 65 418, L.Ed. U.S. S.Ct. ton, 71 273 U.S. 1725; Municipal Army 89 L.Ed. Rescue 718; Packing Co. v. Court Chas. Wolff 522, 537, City U.S. Relations, Angeles, 43 Court of of Los 331 Industrial S.Ct., 549, 568, 1409, seq., et 91 L.Ed. 1103; Mc 67 Ribnik v. 630, 67 L.Ed. S.Ct. 1666; Buck, 387, 313 401- Watson v. U.S. Bride, 48 277 S.Ct. U.S. 61 L.Ed. 1416. S.Ct. 85 913; Oil Standard Williams v. 287; New L.Ed. U.S. S.Ct. de legislature The Louisiana has Liebmann,, Ice Co. v. State type of particularity fined with com pointed out As L.Ed. 747. S.Ct. modity fair which rel. West Nebraska ex v. State Olsen enforced; prices may be established and Ass’n, 313 U.S. Bond & Reference ern namely, bears, “a 1305, 862, 244-246, S.Ct. 61 bears, label container of which the trade can no cases and Williams Tyson, Ribnik mark, brand, producer or name of the authority. controlling deemed longer be and which is in fair Union No. Labor Federal also, Lincoln See open competition with commodities Metal Iron & Northwestern v. 19129 produced general by It class others”. 251, L. 536, 537, 93 525, 69 S.Ct. 335 U.S. was, think, province of the we within the Inc., Lighting, 212; Day-Brite Ed. legislature to assume that economic laws- 405, 423, 421, Missouri, 342 U.S. against constitute ca a sufficient restraint note that interesting to is L.Ed. 469. 96 pricious arbitrary price fixing by the who delivered Sutherland Mr. Justice producer. pointed ago As Louis- long out had Dearborn Court Old Brandéis, pro (later Justice) D. Mr. in Neb dissenting among the Justices peril— ducer “establishes his at his 539, 502, page at York, 291 U.S. bia v. New peril high, that if he sets it either too 940, 517, L.Ed. 505, page 78 buy or, the consumer if the article will concluded: the Court where is, nevertheless, popular, profits high competition”.5 will invite even more control, form We like other “Price agree Judge with the learned District that unconstitutional is regulation, and, further, discriminatory, or Old still controls demon- arbitrary., if that, overruled, if it be leg- is to that can to strably policy irrelevant Supreme only by the done Court. adopt, and hence an free is islature inter- unnecessary unwarranted Dearborn, course, did not liberty.” with individual ference challenges consider the which are addressed provi- there is no argue that Appellants argument McGuire The that 1, 1, Fair Trade Law re- the Louisiana Article Sec. of the Constitution- vests sion power contracts be made Congress legislative fair trade can that which quiring himself, 1, 8, brand owner delegated, mark or not be and that Article trade Sec. powers laws could not constitu- grants Congress over that fair interstate min- non-signers to observe tionally require which cannot be commerce surrendered. participa- pow without prices stipulated delegate The McGuire Act did imum say Congress trade mark or leg er of what fair trade or authorization tion argument permitted is addressed That islation should be in interstate owner. brand commerce, spelled type and the decision of hypothetical case out in detail the to a think, should await question, we of fair trade statute to which the Con apply by gressional specify -consent was to and construction Louisi- clarification ing safeguard the standards and which statute the Louisiana courts. We ana Harper’s Weekly, Brandéis, Competition Kills”, “Cut-Throat Prices —The That No- 5. 15, vember 1913. price- fair trade qualify so-called tend such embody in order act must state law violates under a federal inter- toAs effectiveness. for interstate law Amendment, state under a Fifth commerce, is now settled The Amendment. violates the Fourteenth plenary that it Congress so power of the Fed- here involved by permitting power exercise that Act, as amended eral Trade Commission com- interstate phases of regulate states July Stat. the Act of v. Ben- Co. Insurance merce. Prudential Act, 45; and the Sherman U.S.C.A. § S.Ct. 328 U.S. jamin, August Act of decision, as amended recent The most L.Ed. 673, 693, 15 Comm., 50 U.S.C.A. Stat. Public Utilities States v. United 295, 304, indicates S.Ct. the Louisi- appellants contend that be di- subject that, even when above-cited ana Fair Trade Act commerce, the states rect burden 14, 1952, separately and July federal act of specifically granted Congress has when act other, they relate to each constitute power. of state permission for the exercise power improper delegation however, appellants argue, private fix le- individuals to without Act and the Louisi the McGuire that both supervision. gal governmental standards against inoperative Law are Fair Trade ana they say, a bottle diabetic, pays A $2.08 self-de contain non-signers, because Lilly’s Schwegmann’s, insulin at $2.83 terms, feating contradictions fair bottle at so-called an identical prices, uniform resale maintenance suggestion that prices. There is no power of a from the results appellee’s using the non-contracting par prices impose on to leaders, though they sell products loss as ties, price fixing expressly ex is horizontal prices commodities of identical below the protection of those laws. cluded from the with other in the contract manufacturer’s Appellants’ would render argument by court retail dealers. As well stated non-signers. meaningless as to F.Supp. “The defendants below 270]: [109 intention Congress The and the intention of pass retailers who are efficient simply clearly Legislature are Louisiana efficiency buying of that the fruits non-signers, when that restrictions on the prices. in En- public the form lower of imposed a between as the result of contract pro- act of fair trade would forcement distributor, giv a a are be type this of com- retailers from tect other prohibited is horizontal en effect. What is petition.” agreements fixing “between manufac necessarily concerned with We are not turers, producers, or between or between unconstitutionally any phase of alleged wholesalers, brokers, or between or between act, a much narrow- of the federal because factors, retailers, or between or between presented with to us reference er issue is firms, persons, corporations competi in statute, the determination to the Louisiana tion with each The other.” McGuire dispose might this case. The of of which Wc nothing find Louisiana Fair statute part of the state is that vulnerable Trade Law in the McGuire Act self-de which of Section Title provision feating or violative of the of Constitution denounces, competition and ac- unfair is, judgment The United States. there tionable, any identified com- sale fore, by person party con- modity not to the Affirmed. minimum contract less than the tract at power price. Congress use The HOLMES, Judge (dissenting). Circuit support local interstate commerce over states, it question appeal but cannot au- presented policies The on this regulation ex- constitutionality of commerce as to the thorize of the Louisiana cept Law, 51:391-396, Fair methods are consistent with in- Trade LSA-R.S. imposes a substantial rela- agreements process, have price-fixing sofar due weal, public and that not upon persons parties are who not tion capricious. pri- arbitrary or The use appellants fair-trade contract. The con- 79á private price property making Appellants

vate at which he will sell. in- govern- generally principle free from voke the general contracts are well-settled interference, subject they right property mental but the owner fix inter- public public regulation when the at which he will sell it is an in- apply to requires itself, est limitations property it. These herent attribute of the prices in regulate power a state to as such is protection within of the Fifth individ- commercial transactions between and Fourteenth [citing Amendments au- that, uals. These cases hold with cer- thorities]. exceptions, tain which need not be now sign did not forth, set of the owner cannot prices in this con- that fixed the involved legislative denied enactment troversy, or im- expressly did prices compelling such owner to adhere pliedly that in- agree to contents of to them. But the decisions referred to deal judgment under review strument; but legislative price fixing. They offering sale or restrains them authority constitute no for holding selling manufactured the commodities prices goods may ‘identified’ appellee at than the minimum less be fixed under leave con- ap- stipulated contracts entered into parties. tract between the Fair Illinois retailers, pellee pursuant to the with other infringe Trade Act does not the doctrine Law, Louisiana Trade “or Fair cases.” of these any less be shown than those issued future retail resale schedules” Boys, Manny, The above case and The such con- connection with California, Inc., Moe & Pyroil Jack tracts; enjoins them from it further Co., Inc., Sales 299 U.S. discounts, rebates, refunds, making any require 81 L.Ed. an affirmance character for concessions of kind or of the lower court’s in the instant decision in, of, purpose or which will de- result case; the later decision of stipulated prices, retail creasing said Corp., Bros. v. Calvert Distillers special pertinent save in four cases not opened has may prices here. or low- These be raised the door for a reconsideration of the con- by in appellee ered the with other contracts stitutionality of fair fix- trade laws as retailers, appellants must conform and ing Assailing constitutionality statutes. any prices in their changes to that affect case, of the Old appellants only that, merchandise. Not imposed contend that price-fixing non- on keep posted must as to the retail resale signers under the Louisiana Fair Trade prices of minimum all other commodities them, Law is invalid as to leg- because the bear,' by handled them which labels or the prescribes standards, legal islation no is bear, mark, or containers of which wholly non-signers, coercive as to and af- brand, appellee, or name and which opportunity fords them no to be heard. open competition are in fair and with com- They quote as a follows from later deci- general produced modities of the class sion: a “If distributor and one or more re- others; by they require agree- and must an combine, agree, tailers want to conspire ment second from the vendee will that he price, fix a they to can if do so * * * not, turn, any resell such at permits. state law When price stipulated less the minimum by than seek, however, impose fixing on by the vendor or vendee. persons who have agreed not contracted scheme, vastly is situation dif- In Dearborn Distributing v. Sea- Co. by That is ferent. not Corp., gram 183, page Distillers at price fixing by that is agreement; com- 139, page 143, at pulsion. That is following not the path “In the court said: of the due agreement; clause, that is process of consensual resort to it is contended law * * * law, agree- statute Contracts or is coercion. which has price-fixing cooperative denying prop- convey the effect of to the owner of the idea of a ments ar- erty right program whereby determine rangement, for himself the recaí- business, money heels and doing making that he is dragged citrants drug in his price fixing.” department, compelled submit and that all fair- Calvert Distillers trade articles sold Bros. v. for less fair- Schwegmann than prices except appellee’s, upon 71 S.Ct. 747. Corp., 388 and which the court raise ordered him to decision, supra, Schwegmann Alter the prices. explained He how he arrived at the Fair Trade Louisiana with the which dealt of his (to cost merchandise which he added act, July act of the above-cited profit make), he wanted to and said: he Fed- is as the passed. The latter known every year “We have done that since we Act; drag and, if it did Fair Trade eral business, I have made have sought heels, it appellants in money more than I dreamed I ever could sanctuary them from the remove it, why make.” He asked: I could “If do non-signer A Anti-Trust Sherman drug couldn’t stores do it ?” provision included and provision was blanketed re- whereby a state engaged the manufac- only one retailer wants price-fixing if sale ture, distribution, pharmaceuti- and sale of it, of the Louisiana provided this feature products. cal There are than a hun- more Nevertheless, we is constitutional. statute companies dred other in this same field. intention of the it not. the think was Many products of them manufacture power states delegate to the statute equivalent appel- are identical or to those of from some merely commerce but to free lee. The latter makes one-thousand almost statutory were restrictions the federal products in some seven thousand different case. The mentioned in forms, pharcaceutical promotes their In remain. harriers federal constitutional sale distribution a nation-wide scale. on &Park Co. v. D. Miles Medical Dr. John spends annually purpose, millions U.S., pages at Sons including advertisements. If 384, 55 L.Ed. page at it were fixed consent all of its on Plughes said: Mr. Justice merchandise, trade-marked the same only were done not all of the one-hun- manufacturer “Whatever dred other manufacturers drug but all beyond project his control have to other makers trade-marked articles upon depend not must his own sales forty-five laws, having states fair-trade production power incident to inherent apparent that we would have not ownership, upon agree- original * * * consensual consensual vertical but hori- complainant hav- ment. price-fixing zontal scale a nation-wide product satisfac- ing sold except in three states. itself, public is entitled to tory to advantage be derived may whatever agree If may single with a subsequent competition in prices fix retailer to minimum on innumer traffic.” commodities,a thousand other able branded may thing. do the trade-mark owners same Dearborn de- reasoning the Old may changed at will prices These he upon assumption predicated cision non-signers parties giving without a hear to the ar- had consented non-signers that required ing. Legal are still standards par- Price-fixing between rangement. governmental agency or federal state very simple the ex- a is agreement ties relaxed; prices, however eroded be the max fix statutes anti-trust that tent authority he delegated cannot del im that assume a fabrication to that he it would but potest egated (Delegata postestas non dele consented to the have Schwegmanns Refining Ryan, Panama Co. v. appellee. Mr. gan). fixed prices John seq., et 79 L.Ed. 55 S.Ct. “When I U.S. testified: went into laws, have giv Fair trade mark-up in that busi- drug business exemption from anti-trust high wouldn’t believe one en an you sowas ness them, subject remain to consti overcharge his fellow-man to validate would man requirements. joint Even state is mark-up.” testimony His tutional of a kind provisions those dependent cost of action limited mark-up is on the federal his of the constitution that forbid action alto- It appear does not appel- from whom the gether. Benjamin, Prudential Ins. Co. v. acquired lants may acquire appellee’s or 408, 434, products, U.S. 66 S.Ct. nor good how the will of the manufacturer’s business was or will in- be jured by competition free among retailers. Price-fixing, rate-making, legis- like is a proof There is no presumption wrong- function, legislature lative but no has fixed doing part on the appellants. They of the any prices controversy. this in have prices lowered in trade-marked com- legislature it, has taken its hands off of is,the modities; this extent of their offend- left the states free to act. The Louisiana ing. To make it a tort per se for retail legislature prices has fixed no as to trade- druggists whiskey compete dealers to commodities, marked but has authorized with eadi openly fairly other in trade- the vendors and vendees to do it. All of marked commodities is fanciful and arbi- police power which was within of the ry; tra say and to price-fix- that horizontal state; dragged every but when it retail- ing contracts are unlawful but vertical er, and kicking, alive that had notice of the price-fixing agreements legal though contract, the Louisiana law too went far. monopolistic is to summarize the effect of If it did not make each of contracting law, the Louisiana the title to which is an parties a judge case, in his own it made the attractive misnomer. vendor and vendee of one property every arbiters of rights forty-five As to states and several Con- stranger to the contract who com- gresses owned complacently approved in having modities principle brand. constitutionality fair- statutes, true;, the answer is that it is The office of a give trade-mark is to no- they silentio; have this sub done identity tice of the of an constitutional reasoning all them is article. It should distinguished be from a opinion. found the Old Dearborn It is name, properly which is more allied brief, and is no it better worse than good with the will of a business. In the was when written in 1936. It holds that case, held, the court toas prices goods trade-marked non-signers notice, the unfair be parties. fixed contract between the It competition consisted reselling, their un- * * * adopts “upset a rule that was der producer, the trade-mark of the below cases, a series of of which Dr. Miles Medi- contract to which cal Co. Park D. & Sons John parties. were not The answer U.S. L.Ed. is that the manufacturer used his trade- example.” [299 142.] mark to induce the original sale. He had tacitly admits if any legislature state brand, his name and original on the package any delegated agency should fix product when he sold his put it into parties done, as these contracting have channels of trade. non-signer aIf right of the owner fix his own pse should that trade-marked container to violated; but, says, would be this con- product, sell some other guilty he authority stitutes “no pric- for holding that competition, of unfair but if he sells the es in of ‘identified’goods not be product, same container, the same under fixed under by leave contract be- name, the by same was used the manu- parties.” tween the When it comes to non- facturer, he contract, breadles no commits signers, opinion the confuses the of a use deception, no fraud or practices and no un- brand or trade-mark with good the will of competition, fair by merely a smaller taking proceeds upon a business. theory the profit than some other retailer willing was sale of accept. goods that the identified competition unfair; Such at less than is not trade; prices it of is the (cid:127)the fixed life and to owner of the the mark stifle trade any commodity is to foster monopoly, upon a or brand is an assault the good will which the law abhors. Corp. Sunbeam of the manufacturer’s business. If that Wentling, Cir., 192 F.2d false, premise is the whole structure of fair- pellee, incorporeal property of cards. and house what was like a statutes tumbles trade advertise- retained it. is the best customer If a satisfied disposition of ment, good is the and will appellants bought The more than the place the pleased to return customer loose, disattached, commodity; they bought treated, which are well he has been where bottle, container, package, the or in which the min- aphorisms, then sales below almost delivered, inscriptions it was with the on the good the prices will enhance imum tangible put property same. This into was pro- of the retailer hut of the will not producer, the of channels trade the commodities. If wa- of trade-marked ducer retailers; passed title to it to the the fire of property and the down hill ter runs acquired nothing intangible, latter like injure good burn, prices monopolistic is to good business, will of the or vendor’s in the hearts of resentment will and cause right to use the trade on other com- mark oppressed them. people who arc sold modities them. No covenants ran re- were They of old who feel like those with the sale of the merchandise like cove- quired brick without straw. to make nants sometimes run the. land con- no will find average man or house-wife veyed. emptor The doctrine of caveat did prices of food the fact comfort require buyers price- not of beware kept rather high are vertical drugs or agreements between the vendor and agreements. horizontal than some If other retailer. made contract, syn- no good will are not did need to Trade-mark and under- terms; competitors. Dearborn the covenants onymous but the Old write of their says: “Appellants A always own the commo- trade mark is not opinion evidence will; ; good quality symbolic dity they good mark or the of good do not own hut symbolizes.” ordinarily only representative The court will that the mark of the ori- put gin commodity producer identity of a ignored fact of its (some- simply name and mark on container maker. Marks indicate the quality it in of articles do not on the launched a valid product) times constitute mark, property may no commerce. The court said that there trade be ac- selling prevent purchaser quired from nothing therein. any price, at and noth- alone commodity sales, purpose We have here for the purchaser removing ing preclude resale, of commodities in trade-marked con- the mark selling or brand then ; competition, tainers and was not unfair commodity price, vague at his with a own injurious producer’s will, good for re- proviso will good that the agreed who tailers had no to re- pro- not be to aid the sale. This must used sell the same commodities in con- distinguished viso must from the three defacing at their tainers own without statutory conditions wherein sales ex- are mentioning the trade mark. Without cepted price agreements. from minimum practical impossibility removing statutory exceptions involved aspirin all and from all mark from tablets here, main- the Old drugs stock, containers there may separate phy- tains that retailer forbidding and federal owns, property, sical which he from the marks, obliteration concealment business, good will the manufacturer’s another, requiring display man- even property

which is the then and ufacturer’s, packer’s, or distributor’s name price, pro- sell the his own drugs. 205(e); 27 U.S.C.A. vided, says ownership etc. The court 331, 352. 21 352(a) U.S.C.A. good unchanged, will “remains C.A. notwith- §§ * * * deemed, standing says: drug he parted has been “A shall with”; says (a) labeling and then it If its fair-trade to is be misbranded — “only protect misleading any particular”, inter statute feres or that good false * * * injury.” “if against will Let us now it is 352(i) (3) ascertain offered for physical property ap- what the name of drug.” was sold sale under another devices, patent decisions, constitutionality judicial sine-qua-non rights,

A of the brigaded is and consensual under price-fixing Law Louisiana Fair-Trade Therefore, legislation. and federal I non-signer to remove right of a respectfully the com- sell dissent. mark of the manufacturer price. If modity his own impractical unduly restricted law conditions, fairly regarded may be factual non-existent, postulates both of which hold To other- instant case. are in the true mark on reference to the with wise husks aspirin give every tablet would minimum retailer and

justice to the DAVIS, Revenue, Internal Collector of Whiskey was manufacturer. control to PENFIELD. Dearborn, the product involved in No. 14284. is now mark on which of the trade defacing laws. The state and prohibited Appeals United States Court of drugs involved is true as Circuit. some Fifth injunction. covered case and July 10, impossi- factual, economic legal, personal tangible bility the owner posses- completelywith part property to thereto, yet title sion thereof per- thereof control retain hands to con- effort dead petuity. disposition real estate was trol against by the rule law at common thwarted hands, living and the effort perpetuities; die, to con- corporate hands that never the hands price of commodities

trol simi- purchasers suffer a should of remote drug manufac- If distillers lar fate. vertical make consensual

turers retailers agreements plenty of non-signers, there

binding on foods, goods, canned breakfast

trade-marked commodities, produc- edible and other nation with might blanket ers of agreements. price-fixing

vertical be! this would Cf. tangled web aWhat 40:627; ; ; 40:617; 40:622 40:608 LSA-R.S. ; ; 51:522. 51:243

51:242 out of the the anti-trust

With delegation of is no

Way, there unlawful authority the Louisiana under

price-fixing consen- long as it is Statute so

Fair-Trade coercive,

sual; but, it is to the extent that confiscatory, process, lacking in due

it is entirely coercive Being

and void. appealed

appellants, judgment reversed; original be

should otherwise 'by away leg- Act whittled

Sherman exemptions exceptions, admin-

islative processes, orders

istrative trade-mark

Case Details

Case Name: Schwegmann Bros. Giant Super Markets v. Eli Lilly & Co.

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Oct 19, 1953

Citation: 205 F.2d 788

Docket Number: 14440

Court Abbreviation: 5th Cir.