it argues that because under its charter it is authorized to do business in any part of the state under its corporate name it has thereby pre-empted all the markets that can be found within New Jersey against any company formed with one adjective in its name to be also found in that of the complainant. Such a rule would be subversive of the underlying principle governing monopolies, and would, of course, be highly detrimental to the public interest by reason of the stagnation of trade while the complainant was making up his mind or securing the capital necessary to expand into territory it might properly occupy and which it hopes and expects some day to invade. "While I know of no decision of our own courts in a case on all fours with the present case, there are, however, many opinions in other jurisdictions that make it clear than the right of a given name previously adopted in a business located in one locality does not invest the proprietor of that business with the right to enjoin the use of the same or a similar name by a junior enterprise in another locality where one does not encroach upon the other. Such were the cases of Eastern Outfitting Co. v. Manheim, 59 Wash. 428, 110 Pac. 23, 35 L. R. A. (N. S.) 251; Investor Pub. Co. v. Dobinson (C. C.), 83 Fed. 56; Olin v. Bate, 98 Ill. 53, 38 Am. Rep. 78; Miskell v. Prokop, 58 Neb. 628, 79 N. W. 552; Hygeia Dist. Water Co. v. Consol. Ice Co., 144 Fed. 139; Nebr. Loan & Tr. Co. v. Nine, 27 Neb. 507, 48 N. W. 348, 20 Am. St. Rep. 686; Levy v. Waitt, 61 Fed. 1008, 10 C. C. A. 227, 25 L. R. A. 190; Hazelton Boiler Co. v. Hazelton Tripod Boiler Co., 142 Ill. 494, 30 N. E. 339; Bingham School v. Gray, 122 N. C. 699, 30 S. E. 304, 41 L. R. A. 243. "But the complainant says this 'rule is not applicable to the instant case, because, in the very nature of things, the prospect of a so-called chain store business is the constant expanding, reaching out and establishing of new stores in neighborhoods not already tapped. Surely, in the great majojrity of business enterprises, and especially those like the complainant's involving a busi ness capable of expansion and the investment of large capital, there is implied the hope, intention and design of constantly invading new territory for the purpose of securing an increasing volume of business. For reasons already touched upon, it would be absurd to say that any such intention should permit the pre-empting of the use of the name at a place and time where such a supposed business enterprise had no customers or business, and therefore nothing to lose. It is entirely too remote and fanciful for the complainant to object to another using a name in a certain locality, not because he has already established his trade there, but because he may do so in the future. For it is equally probable he may not." WORKMEN'S COMPENSATION Claimant Held Employee of Independent Contractor Indiahoma Refining Co. v. Industrial Commission, Supreme Court of Illinois, 142 N. E. Rep. 527 A proceeding under the Workmen's Compensation Act by John Bynum, claimant, was opposed by the Indiahoma Refining Co. It appeared that while Bynum was unloading coal from a railroad car at the plant of the refining company, he jumped from the car in order to avoid an attack by a fellow employee with whom he had quarreled, and in alighting broke his leg. The evidence showed that Bynum was employed to shovel coal from cars to the bins of the refining company; that he was hired by Walter King, and that King paid him. Bynum received all his instructions from King, and the latter had the right to discharge him. Bynum received no instructions from the officers of the refining company. King had a contract with the re fining company to unload its coal at a certain rate per ton. He also had similar contracts with other companies. He hired men and discharged them without consulting the refining company, and had full authority over them and gave them all directions. No one else had anything to do with the men that worked for him. He paid the men after they had finished unloading the cars that were assigned to them out of the money which he received from the company for unloading the cars. The superintendent of the refining company testified that he did not know any of the men employed by King; that he did not know how much King paid the men; that the refining company paid them nothing and had no authority whatever over the men working for King; that he did not employ King's men or discharge them, nor direct them in any way. He further testified that he told King where to put the coal; that King put it where he was told, and then came to the company's office and collected the money due him; that he did not know what King did with the money after it was given to him; that the company carried no insurance on King's employees. An award to the claimant was set aside on the ground that Bynum was not an employee of the refining company, but an employee of King, an independent contractor. Hampstead, Md. While Rhoten was engaged in repairing the brakes of an automobile brought into the garage for repair, a piece of steel or iron entered his left eye, causing an injury which necessitated the removal of the eye. Rhoten filed a claim with the State Industrial Accident Commission for compensation for the loss of his eye. An award of compensation was made, from which Wheeler appealed. The question presented was whether the claimant, at the time of injury, was engaged in an extrahazardous employment as defined in the Workmen's Compensation Act Section 32, Art. 101, Vol. 3 of the code). It was held that the claimant was employed in an extra-hazardous employment within the meaning of Subsection 4 of Section 32, which provides that employees engaged in "the operation, including construction and repair, of car shops, machine shops, steam and power plants, not included in paragraph 3" are engaged in extra-hazardous employment within the meaning of the act. In affirming the award the court said: "Every garage, of course, is not a machine shop, for some may be used only in storing or sheltering automobiles; but those garages in which automobiles, as said by the learned judge below, are overhauled, assembled or repaired, come, we think, within the meaning of the term 'machine shops' as used in the statute. The work of the mechanic or machinist, employed therein, is of a character similar to that done in machine shops within the generally accepted meaning of that term, and when we consider the purpose and object of Rhoten, Court of Appeals of the statute, and the vast and growing Maryland, 123 Atl. Rep. 572 The claimant, Lester L. Rhoten, was employed by W. L. Wheeler as a mechanic in the latter's garage in Mechanic Employed in Garage Held Wheeler v. importance of the industry, it is still more apparent to us that garages in which such work is done should be and are included in the term 'machine shops' as used in the statute." Digest of Federal Trade Commission Decisions The Federal Trade Commission, created by Act of Congress in 1914, a body of five members appointed by the President of the United States, has power to order any person, firm or corporation, found to be using unfair methods of competition in interstate commerce, to discontinue the same. Below are digests of recent decisions of the Commission False and Misleading Statements in Advertising Stock of Oil Company-Payment of Pretended Dividends Federal Trade Commission v. Melhuish & Co. et al. (No. 367), 6 F. T. C. 163 Where a corporation, individuals responsible for the organization and management thereof and officers therein, and a firm engaged as fiscal agents of said corporation; jointly and severally, in promoting the sale of said corporation's stock, and as a part of a campaign directed to that end, (a) Made false and misleading statements in advertising and offering said stock, in that they (1) Featured the alleged earnings of the corporation's refinery or refineries, their capacities and business, and their enlargement from time to time, the fact being that earnings from said refineries were at no time sufficient for the payment of dividends in any amount, that one of said refineries was "nothing but an aggregation of junk to which no one had any claim or title," and that no enlargements were made at any time in the three refineries owned in whole or part by said corporation; (2) Featured the steady payment of monthly dividends and also the payment of extra stock and cash dividends, the fact being that during said dividend period the corporation with an income of approximately $20,000 properly available for the payment of dividends paid out as pretended dividends approximately $183,000; (3) Exaggerated and magnified production from its holdings and its net earnings; (4) Misrepresented the location and character of its holdings; and (5) Falsely represented that it was engaged in the complete cycle of the oil industry, to wit, "producing, refining and marketing," and that the net earnings from each were so considerably in excess of dividend requirements on outstanding stock as to give that element of safety of investment which every investor should (b) Agreed to, and did, pay, during the period covered by the contract with its fiscal agents, a pretended dividend of 2 per cent. of the par value of its stock each month, notwithstanding the fact that during said period funds were not properly available therefor; (c) At the request of said fiscal agents agreed to, and did, supplement said pretended monthly dividends; and (d) Made use of false and fraudulent devices, such as fictitious and collusive sales, purchases, and leases in order to show on the books items purporting to represent income; All for the purpose and with the effect of deceiving and misleading the purchasing public into buying large amounts of said stock: Held, That such practices, substantially as described, constituted unfair methods of competition. Payment by Manufacturer of Cash Commissions to Employees of Customers for Recommending Manufacturer's Goods Federal Trade Commission v. Dudley D. Gessler, doing business as Keystone Chemical Co. (No. 368), 6 F. T. C. 180 Where an individual engaged in the sale of dyes, dyestuffs and chemicals gave and offered to give to employees of customers or prospective customers, responsible for the purchase of such products, without the knowledge or consent of their employers, sums of money aggregating annually more than 10 per cent. of his sales, with the intent and effect of inducing the purchase of his goods, and with the result of increasing the price thereof, and with a tendency to cause competitors to do likewise in order to prevent him from obtaining their business: Held, That such gifts and offers to give, under the circumstances set forth, constituted an unfair method of competition. Placing "Tampa, Florida" Label on Cigars Made Elsewhere From Other Than Havana Tobacco Federal Trade Commission v. G. F. Hemler (No. 366), 6 F. T. C. 159 Where it had been long known that cigars manufactured at Tampa, Fla., were largely composed of to bacco imported from Havana, Cuba, and such cigars had come to be widely and favorably known and generally referred to as "Tampa Cigars"; and thereafter an individual engaged elsewhere in the manufacture and sale of cigars made from other than Havana tobacco, placed on certain brands of his cigars bands bearing the words "Tampa, Florida,” and on the paper lining of the boxes containing the same, the words "All Havana Hand Made," with the effect of misleading and deceiving a substantial part of the purchasing public and to the injury of competing manufacturers of genuine so labeled, Tampa cigars who branded and advertised their product: Held, That such misbranding and mislabeling, under the circumstances set forth, constituted ar unfair method of competition. Misleading Statements in Advertise ments of Lubricating Oils Federal Trade Commission v. Penn Lubric Oil Co. (No. 369), 6 F. T. C. 184 Where a corporation engaged in the sale of lubricating oils composed of the so-called Pennsylvania grade of oil mixed with cheaper and inferior oils; in posters, stationery, and other advertising matter represented the same as Pennsylvania oils, and only inadequately advised the purchasing public, through small stickers or circulars which did not reach the attention of any considerable number of persons, that said oils were not composed exclusively of said superior and more expensive stock; with the result that it was thereby enabled to obtain a higher price for its products than it could otherwise have obtained; to the injury both of competitors dealing in pure Pennsylvania oil and of those dealing in a mixture thereof and so advertising and branding the same: Held, That such false and misleading advertising, under the circumstances set forth, constituted an unfair method of competition. "Newtown Pippin Apples" with "California Newtown Pippins," and, for the purpose of securing payment under the purchaser's letter of credit, invoiced said apples as "Oregon Newtown Pippins" (recognized by the trade and understood by said export house as being superior in shipping and keeping qualities to the fruit actually sent) and declined, upon complaint by the purchaser, either to make any deduction from Unfair Competition by Motion Picture the purchase price paid, or to supply Company Federal Trade Commission v. Fox Film Corporation (No. 370), 6 F. T. C. 191 Where a corporation engaged in the business of producing and leasing motion pictures and photo plays to exhibitors under contracts binding them to use only advertising matter furnished or approved by it, reissued and exploited as feature pictures under new titles, photo plays theretofore issued and exploited by it under their original titles, without stating or indicating in the negotiations and contracts of lease, or in the advertising matter supplied by it to exhibitors for use in offering its pictures to the public, that the same were reissues; with the result that exhibitors and their patrons were misled into believing said photo plays to be new pictures: Held, That such practices, under the circumstances set forth, constituted unfair methods of competition. F new goods: Held, That such misrepresentation, under the circumstances set forth, constituted an unfair method of competition in violation of Section 5 of the Act of September 26, 1914, as extended by Section 4 of the Act of April 10, 1918. Advertising as "French Ivory" Arti- Where a corporation engaged in the sale of toilet articles composed in whole or in part of nitrated cellulose or celluloid resembling ivory in color and general appearance; as a means of bringing the same to the attention of the purchasing public and promoting the sale thereof, in its catalogues and other advertising matter described such articles as "French Ivory"; with a capacity and tendency to mislead and deceive the Description of Apples in In- purchasing public and to induce the purchase thereof as and for ivory: voice Federal Trade Commission v. Caravel Held, That such false and misleading advertising, under the circumstances set forth, constituted unfair methods of competition. |