
    No. 814
    SILVER CO. v. FEDERAL TRADE COM.
    U. S. Appeals, 6th Circuit, Cincinnati
    No. 3648.
    Decided Feb. 16, 1923
    163. TRADE NAMES.
    (FED.) — (1) Finding advertised opinion as to ireed of hogs was not true, held not to establish un-air competition — (2) Definition of unfair methods f competition is question for the courts — (3) Order 0 desist from advertising weight of two hogs held nsupported by complaint or facts.
    Attorneys — John G. White, for Silver Company; Charles Melvin and W. H. Fuller, for Trade Commission.
   (ONAHUE, Cir. J.

Epitomized Opinion

1 This was a complaint by the Federal Trade Com-Mssion against the L. B. Silver Company charging 1 with using unfair methods of competition in inter-;ate commerce. Later the company filed a petition > revise the order of the commission. The original >mplaint alleged that the company had made false ^presentations to the public that it was a breeder ad shipper-of thoroughbred hogs; that the Ohio nproved Chester is a breed of hogs separate and stinct from the Chester White hogs; that it adver-sed Chester White hogs for sale at a price less tan that for which it would sell O. I. C. hogs; that represented that the O. I. C. hogs were not so isceptible to disease; that it represented that two : the O. I. C. breed of hogs weighed 2806 pounds > as to deceive the public. To this complaint an iswer was filed, and the Commission entered an der restraining the defendant from advertising at there was a difference between the O. I.-C. id the Chester White breed, also restraining the fendant from advertising that it had no Chester bite pigs; also that the O. I. C. pigs were -not susceptible to disease. The defendant was also dered to desist from advertising that two of his hogs weighed 2806 pounds and also from shipping at reduced freight rates. From this order the defendant prosecuted error. In modifying the order of the Commission, the United States Court of Appeals held:

1. Where the evidence before the Trade Commission showed an honest difference of opinion between experts as to whether the stock from which defendant bred its hogs was a separate breed, or only a different strain of the same breed, and finding that an advertisement that it was a separate, breed - was false does not establish unfair competition with breeders, since dealers generally are familiar with the facts and would not be deceived thereby; therefore, an order requiring it to desist from making such statements in its advertisements must he modified.

2. In determining the meaning of unfair methods of competition as used in the Federal Trade Commission Act (Compiled St., Par. 8836A et seq.) a court must give due consideration to the public policy declared in the Sherman Anti-Trust Act.

3. The finding that the advertisement that two of defendant’s hogs weighed 2806 pounds would mislead a prospective purchaser to believe these hogs were then or had recently been in existence was erroneous, because the complaint contained no charge that the defendant advertised it had for sale the progeny of these hogs, and the fact also showed that the advertisement was made in 1883 and that excessive weight hogs were not desirable for breeding purposes.  