Misbranding

“ But if the false statement referred to is a mistatement of identity as applied to a part of its objects, idiom and logic unite in giving it the same limit when applied to the other branch, the article, whether simple or one that the ingredients compose. Again, it is to be noticed that the cases of misbranding, specifically mentioned, and following the general words that we have construed, are all cases analogous to the statement of identity, and not at all to inflated or false commendation of wares. ”

“ Consequently, since the enumerated label-defacing offenses bear no textual or logical relation to the scope of the general language condemning acts of product adulteration, [7] application of the rule of ejusdem generis to limit the words 'the doing of any other act' resulting in product adulteration in § 301 (k) to acts of the same general character as those specifically enumerated with respect to misbranding is wholly inappropriate. ”

“ These sections considered together provide a definition for the 'misbranding' of drugs. I agree that a drug is misbranded within the meaning of the statute if false and misleading written, printed, or graphic matter is either placed upon the drug, its container or wrappers, or used in the sale of the drug as a supplement to the package label to advise consumers how to use the drug. ”

“ Moreover, in defining what shall be adulteration or misbranding for the purposes of the federal act, it is provided that mixtures or compounds known as articles of food under their own distinctive names, not taking or imitating the distinctive name of another article, which do not contain 'any added poisonous or deleterious ingredients,' shall not be deemed to be adulterated or misbranded if the name be accompanied on the same label or brand with a statement of the place of manufacture. ”

“ That the term 'adulteration' is used in a special sense. For example, the product of a diseased animal may not be adulterated in the ordinary or strict meaning of the word, but by reason of its being that product the article is adulterated within the meaning of the act. The statute with respect to 'adulteration' and 'misbranding' has its own glossary. ”

“ It directs that a food shall be deemed 'misbranded' if it 'is an imitation of another food, unless its label bears, in type of uniform size and prominence, the word 'imitation' and, immediately thereafter, the name of the food imitated.' The other, subsection (g) , was added to the enlargement of the statute in 1938. It condemns as 'misbranded' a product which 'purports to be or is represented as a food', the ingredients of which the Administrator has standardized, if the product does not conform in all respects to the standards prescribed. ”

“ It is only when the adoption or imitation of what is claimed to be a trade-mark amounts to a false representation, express or implied, designed or incidental, that there is any title to relief against it. ”

“ He who affixes to his own goods an imitation of an original trade-mark, by which those of another are distinguished and known, seeks by deceiving the public to divert to his own use the profits to which the superior skill and enterprise of the other had given him an exclusive title, and endeavors by a false representation to effect adishonorable purpose by committing a fraud upon the public and upon the true owner of the trade-mark. ”

“ To put forth a statement, therefore, in the form of a circular or label attached to an article, that it is manufactured in a particular place, by a person whose manufacture there had acquired a great reputation, when, in fact, it is manufactured by a different person at a different place, is a fraud upon the public which no court of equity will countenance. ”

“ And it has also been held that it is a deceptive practice to misappropriate the trade name of another. [19]
Respondents claim that all these cases are irrelevant to our decision because they involve misrepresentations related to the product itself and not merely to the manner in which an advertising message is communicated. This distinction misses the mark for two reasons. In the first place, the present case is not concerned with a mode of communication, but with a misrepresentation that viewers have objective proof of a seller's product claim over and above the seller's word. ”

“ He may not deceive himself here, for here the patent medicine is nakedest, most cold-hearted. Relentless greed sets the trap and death is partner in the enterprise.
VI—THE FUNDAMENTAL FAKES. Reprinted from Collier's Weekly, Feb. 17, 1906. [057]
Advertising and testimonials are respectively the aggressive and defensive forces of the Great American Fraud. Without the columns of the newspapers and magazines wherein to exploit themselves, a great majority of the patent medicines would peacefully and blessedly fade out of existence. ”

“ That deception is due primarily to the words of the labels, and not to deliberate deception by the retailers from whom the consumer purchases. While it is true that a secondary meaning of the word 'Merino' is shown, it is not a meaning so thoroughly established that the description which the label carries has ceased to deceive the public; for even buyers for retailers, and sales people, are found to have been misled. The facts show that it is to the interest of the public that a proceeding to stop the practice be brought. ”

“ But a nickname is tied down to no such limited service; it is a disposable force, that is almost always perverted to mischief. It clothes itself with all the terrors of uncertain abstraction, and there is no end of the abuse to which it is liable but the cunning of those who employ, or the credulity of those who are gulled by it. It is a reserve of the ignorance, bigotry, and intolerance of weak and vulgar minds, brought up where reason fails, and always ready, at a moment’s warning, to be applied to any, the most absurd purposes. ”

“ There are degrees in real crimes: we reason and moralise only by names and in classes. I should be loth, indeed, to say, that ‘whatever is, is right:’ but almost every actual choice inclines to it, with some sort of imperfect, unconscious bias. This is the reason, besides the ends of secresy, of the invention of slang terms for different acts of profligacy committed by thieves, pickpockets, &c. The common names suggest associations of disgust in the minds of others, which those who live by them do not willingly recognise, and which they wish to sink in a technical phraseology. ”

“ It is a settled principle of law that a complainant must appear in a court of equity with clean hands. In other words, an essential misrepresentation of a complainant's goods, by means of his trade-mark, or on his labels, or through advertisements, is a bar against his action for relief from infringement. ”

“ Researches in slang mean discoveries at every step. Study and investigation of this strange idiom lead to the mysterious point of intersection of regular society with society which is accursed.
The thief also has his food for cannon, stealable matter, you, I, whoever passes by; le pantre. (Pan, everybody.)
Slang is language turned convict.
That the thinking principle of man be thrust down ever so low, that it can be dragged and pinioned there by obscure tyrannies of fatality, that it can be bound by no one knows what fetters in that abyss, is sufficient to create consternation. ”

“ To the purist slang is an unmitigated evil which makes for the gradual corruption and decadence of our vernacular. The pedant who is a martinet regards all slang with absolute contempt and abhors its use, because he believes slang spells deterioration for our noble tongue. Such an one takes his self-appointed guardianship of the language very seriously and deems it his bounden duty as a curator of our English speech, not only himself to spurn the use of slang, but also to inveigh against all those who employ it habitually or occasionally. ”

“ Would you dare to make an estimate of how many falsehoods in trade were yesterday told by hardware men, and clothiers, and fruit-dealers, and dry-goods establishments, and importers, and jewellers, and lumbermen, and coal-merchants, and stationers, and tobacconists? Lies about saddles, about buckles, about ribbons, about carpets, about gloves, about coats, about shoes, about hats, about watches, about carriages, about books,—about everything. In the name of the Lord Almighty, I arraign commercial falsehoods as one of the greatest of abominations in city and town. ”

“ Well, yes; to abstract a name and place one's self under it is dishonest. The letters of the alphabet may be filched like a purse or a watch. To be a false signature in flesh and blood, to be a living false key, to enter among honest folk by picking their lock, never to look, but always to squint, to be internally infamous,—no! ”

“ It is not confined to words that can be made a trademark in a full sense. The name of a person or a town may have become so associated with a particular product that the mere attaching of that name to a similar product, without more, would have all effect of a falsehood. ”

“ However, the requirement that a court accept the factual allegations in the complaint as true does not extend to legal conclusions. See Iqbal, 556 U.S. at 678.
III. Discussion
A. False Advertising
Under Section 43 (a) of the Lanham Act, a person is liable for false advertising when the person:
in connection with any goods or services ... uses in commerce ... any ... false or misleading description of fact, or false or misleading representation of fact, which— ... (B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities ... ”

“ Let a nickname be industriously applied to our dearest friend, and let us know that it is ever so false and malicious, yet it will answer its end; it connects the person’s name and idea with an ugly association, you think of them with pain together, or it requires an effort of indignation or magnanimity on your part to disconnect them; it becomes an uneasy subject, a sore point, and you will sooner desert your friend, or join in the conspiracy against him, than be constantly forced to repel charges without truth or meaning, and have your penetration or character called in question by a rascal. ”

“ In some instances, the foreigners have given the go-by to us with an almost superb audacity: imitating the very notification on English wrappers that to imitate that particular trade-mark is felony! Print what they may, stamp what they may, English manufacturers of high-class goods find that they cannot ward off this kind of cheatery—cheatery, not of money direct, but of the good reputation which possesses{493} money's worth. However, international trade-mark laws are doing something to lessen this unfairness—of English towards foreigners as well as of foreigners towards English. ”

“ Instead of following the order in which the questions are stated above, I will begin by that which appears to me the most important, namely: “the language in which the Desátir is written, is it nothing but a factitious language invented to support an imposture?”
The forgery of a language, so bold an imposture, renders any other fraud probable; through a false medium no truth can be expected, nor even sought. ”

“ Nothing is more lugubrious than the contemplation thus in its nudity, in the broad light of thought, of the horrible swarming of slang. It seems, in fact, to be a sort of horrible beast made for the night which has just been torn from its cesspool. One thinks one beholds a frightful, living, and bristling thicket which quivers, rustles, wavers, returns to shadow, threatens and glares. ”

“ And they show also that the practice constitutes an unfair method of competition as against manufacturers of all wool knit underwear and as against those manufacturers of mixed wool and cotton underwear who brand their product truthfully. For when misbranded goods attract customers by means of the fraud which they perpetrate, trade is diverted from the producer of truthfully marked goods. That these, honest manufacturers might protect their trade by also resorting to deceptive labels is no defense to this proceeding brought against the Winsted Company in the public interest. ”

“ It is possible to go further, even, and to turn the tables on those who see in slang an ever-growing evil. Not only is there little danger to the language to be feared from those alleged corruptions, and from these doubtful locutions of evanescent popularity, but real harm is done by [Pg 212] the purists themselves, who do not understand every modification of our language, and who seek to check the development of idiom and to limit the liberty which enables our speech freely to provide for its own needs as these are revealed by time. ”

“ For legitimate slang, far from being an unmitigated evil and a constant menace to the purity and propriety of our noble tongue, is standard English in the making, is idiom in the nascent state before it has attained to the dignity of correctness of usage. To change the [Pg 92] figure, legitimate slang is the recruiting ground whence come the new and untried words which are to take the place in the vernacular, of the archaic and obsolete words, dropping out of the ranks. ”

“ But if, by the exuberances of their art, they set the goods in a false light, give them a false gloss, a finer and smoother surface than really they have: this is like a painted jade, who puts on a false colour upon her tawny skin to deceive and delude her customers, and make her seem the beauty which she has no just claim to the name of. ”

“ This is not the moment, and perhaps we are not competent to examine whether the penalty of branding, as it is re-established in our present code, is compatible with the true object of all good legislation, that of correcting while punishing, of striking only as far as is necessary to prevent and preserve; in short, of producing the greatest good to all with the least possible evil to individuals. ”