Petition to Review an Order of Federal Trade Commission.
Before SPARKS, MAJOR, and TREANOR, Circuit Judges.
This case comes before us on a petition to reivew and set aside an order of the Federal Trade Commission. The petitioner is a corporation of the State of Delaware with its principal office and place of business in Chicago, Illinois. The petitioner is engaged in interstate commerce and its business consists of the sale and distribution of kitchen utensils.
The Federal Trade Commission issued its complaint against petitioner for violation of the Federal Trade Commission Act,*fn1 and petitioner filed its answer in which it admitted all the material allegations of fact and waived all intervening procedure and further hearing in respect to said facts. Respondent made findings of fact and entered the usual cease and desist order.
The petitioner's contentions may be statted as follows:
(1) Item 5 of the Commission's order is unlawful because it enjoins the petitioner's use of its trade name although the complaint did not allege, nor did the Commission find as a fact, nor did petitioner agree or stipulate that the trade name or petitioner's use thereof was unlawful.
(2) The first clause of item 7 of the order should be modified by appending thereto "manufactured by competitors" for the reason that without these words the order goes beyond the scope of the complaint.
(3) The first clause of item 7 of the order substantially exceeds the scope of the complaint in respect both to its present and future operation.
The allegations of the complaint, which are material to petitioner's contentions, are disclosed by the following quoted excerpts:
"Paragraph One: * * * Respondent (petitioner) is now and since 1933 has been engaged in the sale and distribution of kitchen utensils under the trade name 'Silver Seal.' * * * "
"Paragraph Three: * * * The method chiefly employed by * * * (petitioner in advertising and selling) is the giving of manual demonstrations * * * These demonstrations are given generally before groups * * * and are accompanied by various statements and representations as to the character, nature, and quality of respondent's (petitioner's) said product and their effectiveness in use as hereinafter set forth."
"Paragraph Four: Among and typical of the statements and representations so made * * * in connection with the offering for sale, sale and distribution of said products in commerce as hereinabove alleged are those to the effect that said utensils, offered for sale and sole under the trade name 'Silver Seal', contain no aluminum * * * ; that the method of cooking made possible by said utensil is new and revolutionary; that said utensils are more durable and more easily cleaned than are aluminum or granite utensils manufactured by competitors; * * * "
"By the means and in the manner aforesaid respondent (petitioner) further represents and implies that it manufactures the utensils offered for sale and sold by it and that said utensils ...