on paste tickets, hanging tags, salesmen's color cards, and other descriptive matter used in connection with the sale and distribution of said fabric ".

It found that after December 7, 1925, the petitioner in its advertisements and descriptive matter used in connection with the sale and distribution of this fabric the words "a cotton fabric a cotton fabric " either below or above the word "Satinmaid" and "Satinized" but in letters considerably smaller, except in the so-called color cards used by traveling salesmen to exhibit the various colors in which petitíoner offers its fabric for sale. On these color cards the words "a cotton fabric " appear in letters larger but less conspicuous than the trade name "Satinmaid" or "Satinized." The Commission found that the word "satin" described a fabric composed [61]wholly of silk woven in a peculiar manner so as to impart a high luster to the surface of the fabric; that the word "Satinmaid" composed of two words" satin " and "maid "had the same phonetic significance as if it were used with the word "made " and has a capacity and tendency to mislead and deceive buyers into the belief that this cotton fabric consisted wholly or in part of silk and thus induced purchasers to the same belief. Moreover, it found that in its selling the petitioner had paste tickets, hanging tags, board ends and color cards bearing the name "Satinmaid" and thus misled the buyers into the belief that the fabrics consisted in whole or in part of silk.

There are many definitions in the different recognized dictionaries of the word "satin," but all substantially holding it to be a silk fabric made of a thick close texture and overshot woof having a glossy surface. Much expert testimony has been adduced as to the meaning of the word "satin" but substantially agreeing that it is used in one of two senses to describe any satin woven cloth. But if the word "satin " is not alone used and there be a qualifying phrase which is descriptive of the material, there can be no deception of the public. The fact that the petitioner has trade-marked the word "Satinmaid" and "Satinized" gave it no unlimited sanction to use it when it would deceive. Brougham et al. v. Blanton Mfg. Co., 249 U. S. 495; Federal Trade Commission v. Kay, 35 F. (2d) 160 (decided Sept. 18, 1929, 7th C. C. A.)

The test of the unfair method of competition was not whether a trade-mark may have been registered but whether the method of using it falls within the prohibition of the Federal Trade Commission Act (15 USCA, secs. 41-51), which forbids unfair method of competition in commerce and declares it to be unlawful. Any misleading trade-marks and labels used in merchandising a product which misleads the purchasing public is forbidden. Federal Trade Commission v. Winsted Hosiery Co., 258 U. S. 483. But the evidence concededly shows that "satin " among other things, means the weave of the cloth and therefore may be used with or without additional qualifying words to describe fabrics or cloths woven in the satin weave. Satin may also be used with qualifying words indicating the yarn in which the fabric described is woven and such would not be misleading. Thus used, if the word "satin " makes reference to the weave as well as the yarn and the petitioner makes known that the yarn of which the fabric is woven is not silk-yarn usually employed in manufacturing satin-there can be no deception on or misleading of the public. Where cotton yarn is used, reference should be clearly made that it is used.

In December, 1925, the parties recognized this by their stipulation and agreed upon a policy of sale, with a reference to the cotton fabric, as safe to the purchasing public. Silk manufacturers, who have a great interest to prevent the sale of materials as silk made when they are not, define satin as including a weave and a silk-faced fabric. The petitioner has a satin weave and there can be no deception by the use of the word "Satinmaid" or Satinized" if it is sufficiently made known that all of the material used is not silk. Thus the petitioner would describe its "Satinmaid" and "Satinized" as a cotton fabric with a satin weave which, if thus truly made and truthfully displayed and offered to the purchasing public, will not be deceptive. An order which would forbid such merchandising prohibits that which is lawful and the order to cease and desist entered upon such a basis can not stand. Fed. Trade Comm. v. Curtis Pub. Co., 260 U. S. 568; Heuser v. Fed. Trade Comm. 4 F. (2d) 632. This court has the power under the statute (U. S. Code Title 15 Sec. 45), to conform the order to the complaint and findings. Fed. Trade Comm. v. Balme, 23 F. (2d) 315.

Accordingly, the order to cease and desist will be modified so as to require the petitioner to cease and desist, directly or indirectly, from using the words "Satinmaid" or "Satinized" or any word or words or combination of words embracing the word "satin" as a trade name for or to describe or designate a cotton fabric offered for sale or sold in interstate commerce, unless there be added in letters equally conspicuous and on the same side of the label, advertising matter, wrapper, stationery, or board ends on which the words "Satinmaid" or Satinized" appear, the words "a cotton fabric ", "a cotton satin ", "no silk ", or equivalent modifying terms.

As thus modified, the order is confirmed.

MACFADDEN PUBLICATIONS, INC., v. FEDERAL TRADE COMMISSION 1

(Court of Appeals of District of Columbia. Argued December 3, 1929. Decided January 7, 1930)

No. 5024

MANDAMUS KEY-NO. 4(5)-STATUTE HELD TO PROVIDE PLAIN, ADEQUATE, AND EXCLUSIVE REMEDY TO CORRECT ERRORS IF FEDERAL TRADE COMMISSION, PRECLUDING MANDAMUS AS ADDITIONAL OR ALTERNATIVE REMEDY (15 USCA SEC. 45).

Act September 26, 1914, 38 Stat. 720 (15 USCA sec. 45), giving Circuit Court of Appeals and Court of Appeals of District of Columbia exclusive Jurisdiction to enforce, set aside, or modify orders of Federal Trade Commission, provides a plain, adequate, and exclusive method of judicial review for correction of any errors which Commission may make in a proceeding to require respondent to cease unfair methods of competition in interstate commerce; hence mandamus can not be granted as an alternative or additional remedy.

1 The case is reported in 37 F. (2d) 822.

MANDAMUS KEY-NO. 3(2)-MANDAMUS WILL NOT ISSUE, WHERE THERE IS OTHER ADEQUATE LEGAL REMEDY.

Writ of mandamus will not issue, where there is any other adequate legal remedy.

MANDAMUS KEY-No. 4(1)-MANDAMUS CAN NOT BE USED AS SUBSTITUTE FOR APPEAL OR WRIT OF ERROR.

A writ of mandamus can not be made to perform the office of an appeal or writ of error, or be used as a substitute for either.

(The syllabus is taken from 37 F. (2d) 822)

Mandamus proceeding by the MacFadden Publications, Inc., against the Federal Trade Commission and Edgar A. McCulloch and others, as commissioners. From an adverse judgment by the Supreme Court of the District, petitioner appeals. Affirmed.

L. Rabbitt, H. T. Lore, and J. H. Sykes, all of Washington, D. C., for appellant.

Robert E. Healy and Baldwin B. Bane, both of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.

MARTIN, Chief Justice:

An appeal from a judgment of the lower court refusing to issue a writ of mandamus to compel the Federal Trade Commission to issue certain subpoenas duces tecum in a proceeding pending before it.

The record discloses that on April 30, 1929, a written complaint was filed with the Federal Trade Commission charging that appellant was using certain unfair methods of competition in interstate commerce in violation of the provisions of section 5 of the act [823] of Congress approved September 26, 1914, entitled "An act to create a Federal Trade Commission, to define its powers and duties, and for other purposes," 38 Stat. 717. The complaint charged that appellant was engaged in the business of publishing and distributing magazines, periodicals, and newspapers, and that it had adopted a practice of soliciting subscriptions therefor at prices which it falsely represented to be less than the regular subscription prices, whereas in fact the prices thus solicited were not less than such regular prices. Appellant as respondent answered, denying the charge; and the issue stood for trial.

Thereupon appellant made formal application to the Commission for the issuance of certain subpoenas duces tecum, to be used at the trial, and the same were issued. But afterwards the Commission on the petition of some of the witnesses so subpoenaed, vacated the duces tecum clause requiring the production of the papers and documents therein specified. The respondent objected to this order and moved that the subpoenas be reissued. But this motion was overruled by the Commission.

The respondent as plaintiff then filed a petition against the Commission and the various members thereof in the Supreme Court of the District of Columbia, setting out the foregoing facts, and

praying that a writ of mandamus should issue commanding the Commission to issue the writs of subpoena duces tecum, which the Commission had refused to issue as aforesaid. The case was heard by the lower court upon petition and answer, and judgment was entered against the petitioner. This appeal was then taken.

In our opinion the judgment of the lower court was correct. Section 5 of the Federal Trade Commission Act reads in part as follows (38 Stat. 720):

Any party required by such order of the Commission to cease and desist from using such methods of competition may obtain a review of such order in said circuit court of appeals by filing in the court a written petition praying that the order of the Commission be set aside. A copy of such petition shall be forthwith served upon the Commission, and thereupon the Commission forthwith shall certify and file in the court a transcript of the record as hereinbefore provided. Upon the filing of the transcript the court shall have the same jurisdiction to affirm, set aside, or modify the order of the Commission as in the case of an application by the Commission for the enforcement of its order, and the findings of the Commission as to the facts, if supported by testimony, shall in like manner be conclusive.

The jurisdiction of the circuit court of appeals of the United States to enforce, set aside, or modify orders of the Commission shall be exclusive.

It may be noted that similar jurisdiction is vested in this court, Federal Trade Commission v. Klesner, 280 U. S. 19.

It thus appears that the statute provides a plain, adequate, and exclusive method by judicial review for the correction of any error which the Commission may commit in such a proceeding. This being the case it follows that mandamus can not be granted as an alternative or additional remedy, for it is well settled that the writ will not issue where there is any other adequate legal remedy. Nor can the writ be made to perform the office of an appeal or writ of error or be used as a substitute for either. See 38 Č. J. 558, sec. 31, with citations.

Therefore, without passing upon the merits of the case we affirm the judgment of the lower court refusing to issue a writ of mandamus upon the petition.

Judgment affirmed with costs.

FEDERAL TRADE COMMISSION v. AMERICAN SNUFF CO.

(Circuit Court of Appeals, Third Circuit. Feb. 13, 1930)1

No. 3816

TRADE-MARKS AND TRADE-NAMES AND UNFAIR COMPETITION KEY-NO. 80%--COURT'S JUBISDICTION TO ENFORCE FEDERAL TRADE COMMISSION'S ORDER DEPENDS ON WHETHER RESPONDENT FAILED TO OBEY ORDER AND WHETHER ORDER IS VALIN (FEDERAL TRADE COMMISSION ACT SEC. 5; 15 USCA SEC. 45.)

Jurisdiction of Circuit Court of Appeals under Federal Trade Commission Act section 5 (15 USCA sec. 45), providing commission may apply to court for enforcement of order depends on whether respondent has failed or neglected to obey order, and whether such order is valid.

1 Rehearing denied Mar. 24, 1930. Commission reported in 11 F. T. C. 144.

Case reported in 88 F. (2d) 547. Case before

TRADE-MARKS AND TRADE-NAMES AND UNFAIR COMPETITION KEY-NO. 70(1) -ORDER PROHIBITING SNUFF COMPANY FROM USING WORD "DENTAL" AND DEPICTION OF TOOTH IN BRAND NAME OR ON LABEL HELD UNLAWFUL; "DIPPING."

Order prohibiting snuff company from using word "dental" and depiction of tooth in brand [548] name or on label, held unlawful, where purchasers could not have been misled by changed label adopted when respondent ceased to use ingredient calculated to preserve or benefit teeth and gums, since there was no unfairness in use of word "dental" and picture of tooth because it occupies substantially same relation to snuff used by "dipping" as word "nasal" does to snuff taken through nostrils, "dipping" being practice of taking snuff by rubbing teeth or gums with stick or brush dipped in snuff. TRADE-MARKS AND TRADE-NAMES AND UNFAIR COMPETITION KEY-NO, 99-IN DETERMINING WHETHER CHANGED SNUFF LABEL MISLED PURCHASERS, FACTS AT TIME SUIT WAS BEGUN MUST BE CONSIDERED.

In determining whether purchasers of snuff were misled by changed label on snuff where change had been made years before, facts as they were when suit was begun must be considered, not facts of different condition and earlier time.

(The syllabus is taken from 38 F. (2d) 547)

Petition by Federal Trade Commission against the American Snuff Company for enforcement of an order of the Commission. Order of Commission held unlawful.

Wm. A. Sweet, James T. Clark, Robert E. Healy, chief counsel, and Adrien F. Busick, assistant chief counsel, Federal Trade Commission, all of Washington, D. C., for appellant.

Owen J. Roberts, of Philadelphia, Pa., Edward S. Rogers, of Chicago, Ill., Morton E. Finch, of Memphis, Tenn., and C. Russell Phillips, of Philadelphia, Pa., for appellee.

Before BUFFINGTON and DAVIS, Circuit Judges, and THOMSON, District Judge.

BUFFINGTON, Circuit Judge:

Without entering into a recital of the bulk of testimony involved and the numerous questions discussed, we limit ourselves to matters and things pertinent and decisive.

The case involves the construction and enforcement of section 5 of the Federal Trade Commission Act, which provides

If such person, partnership, or corporation falls or neglects to obey such order of the Commission while the same is in effect, the Commission may apply to the circuit court of appeals of the United States, within any circuit where the method of competition in question was used or where such person, partnership, or corporation resides or carries on business for the enforcement of its order

As we read the statute, the jurisdiction of this court, and, therefore, its power to enforce, rests on two facts, first whether the respondent has failed or neglected to obey the order of the Commission-a question of fact, and secondly, whether such order is valid— a question of law.