In the Matter of the Complaint Against

JILL JARA LTD.
104 East 40th Street at
New York, New York 10016

P.S. Docket No. 2/117;

APPEARANCES:
Daniel S. Greenberg, Esq.
Consumer Protection Office
Law Department
U. S. Postal Service
Washington, D.C. 20260
for Complainant

Francis J. Sullivan, Esq.
Richard H. Crowe, Jr., Esq.
Dayton R. Stemple, Jr., Esq.
Liddy, Sullivan, Hart, Daniels & Stemple
253 Broadway New York, New York 10007
for Respondent

POSTAL SERVICE DECISION

The matter is before the undersigned on appeal by both parties taking various exceptions in accordance with § 952.25 of the applicable Rules of Practice, to the Initial Decision rendered by Administrative Law Judge Sobernheim. Complainant's exceptions will be taken up first.

Complainant takes exception to the Initial Decision's finding that alleged representations relating to elimination or reduction of wrinkles were not proven and to the consequent failure to make further findings on the truth or falsity of such representations. In essence its argument is that the findings that the word "wrinkles" was not used in the advertisement and that Respondent did not intend to make representations regarding wrinkles evidence a misapplication of the legal principle that advertisements are to be viewed as a whole, the test being the ultimate impression upon the mind of the reader which arises from not only what is said but also all that is reasonably implied. Donaldson v. Read Magazine, 333 U.S. 178, 179 (1948).

It should be noted, however, that the findings in the Initial Decision that Respondent did not intend to make any such representation and deliberately refrained from referring to wrinkles precede the finding that Respondent had carefully chosen the language of the advertisement and "in fact succeeded in not misleading an ordinary reader to believe that its product improves wrinkles". Thus, it is clear that the test employed by Judge Sobernheim is the same test urged by Complainant and about which there is no question, with the preceding statements receding to the value of background, undeterminative of result. Therefore, while the intention of the Respondent, as Complainant properly contends, is not material to the test of impression upon the mind of the reader, the statement of this fact in this Initial Decision does not invalidate the finding that the advertisement does not have this implied effect upon the ordinary reader.

Complainant urges that when the advertisement is read in its entirety the reader would be given the impression that the product will eliminate or significantly reduce wrinkles. It contends that references in the advertisement to "sagging contours" and to the "face", "chin", "jowls" and "neck" do not preclude this result and argues that the word "face lift" necessarily compels it. When viewing the whole advertisement including the pictoral representations and the emphasis upon certain words one would not normally associate with wrinkles, in the context used, I find myself in agreement with Judge Sobernheim's opinion on this point rather than Complainant's. Complainant's expressed concern for the precedential effect of this case is unwarranted. Each advertisement is unique and must stand or fall on its own merits on the facts of the particular case applying the established test of its impression upon the mind of the reader. The fact that arguments can be made for both sides of the proposition whether a particular representation was made does not automatically establish that it was in fact made. In a given case the use of one word, a picture, a particular combination of words, a general claim, a particular emphasis, or a host of other possible factors peculiar to each case, may produce a different result. The risk is on the advertiser if his advertisement falsely represents a material fact. The burden of persuasion that it does, rests with the Complainant. Having found that the representation was not made, it was, of course, unnecessary for the Initial Decision to make findings on falsity. Complainant's exceptions to the Initial Decision are disallowed.

Respondent's appeal brief, while not listing exceptions as such, appears to take issue with two aspects of the Initial Decision, one is the acceptance in evidence of a chemical analysis Respondent claims was improper, and the other is the manner in which the patent for the product was relied upon as evidence in the Initial Decision. Complainant waived filing of a reply brief.

Respondent's contention on the chemical analysis is that the passage of a 4-month period with the jar being opened at least 12 times would so affect the contents through exposure to the air as to render the analysis unreliable as evidence. Judge Sobernheim's findings with specific reference to the evidence he relied upon are supported by the record and I find no basis to reverse them.

Respondent's second exception relates to the use of the patent as evidence. It points to the reference in the Initial Decision to the patent as confirmation of the Complainant's laboratory analysis (Finding of Fact, par. 3) and contends that if it can be used for this purpose it is also reliable to support Respondent's case. Using this argument it contends that "the patent is obviously a holding by a government expert in the art i.e., the Patent Examiner, that the composition is (1) new and

(2) useful" citing 35 U.S.C. ?? 101, 103. ^1/ It draws the conclusion that this is directly contrary to Finding 21f and Conclusion of Law 4 in the Initial Decision. Finding 21f was to the effect that the representations of uniqueness and conceptional newness set forth in Complaint Allegations e, f and g ^2/ were false since the product was "shown to be only another form of astringent salt solution of no greater or different effectiveness in the relevant aspects than other such solutions".

§ 101. Inventions patentable

'Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title. July 19, 1952, c. 95-, § 1, 66 Stat. 797.'"

"35 U.S.C. 103 § 103. Conditions for patentability; non-obvious subject matter

'A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made. July 19, 1952, c. 950, § 1, 66 Stat. 798.'"

Judge Sobernheim's reference to the patent specification prepared by Respondent appears to treat it in the nature of an admission against interest in the form of a statement filed in a separate official proceeding by the Respondent who now contests the accuracy of an independent test report saying essentially the same thing. Therefore, I do not construe the Initial Decision to mean that the patent would be inadmissible as evidence that a product was "new" or "useful" or "non-obvious". Judge Sobernheim's statement in Conclusion of Law 4 that "The issuance of the TG patent is not proof of the truth, and cannot overcome the weight of the evidence showing the falsity, of Respondent's representations" goes to the weight to be given to the issuance of the letters patent as proof of the advertising claims in this case. See, for example, the statements in Finding of Fact 20 that "Respondent's representations find only very limited factual support in the patent claim covering the product's utility (see FF 14b)" and that "On the record here made the claims allowed in Respondent's patent are not factually determinative of the issues at hand." (Emphasis supplied). In my view the evidence supports the falsity of the claims as found by Judge Sobernheim. Accordingly, Respondent's exceptions are denied and an appropriate order under 39 U.S.C. § 3005 is being issued contemporaneously with this decision.

Lussier, Edward F.

____________________

1/ "35 U.S.C. 101

2/ The representation in Charge e is that the formulation of the product differs materially from that of all other creams offered for the purpose. The representation in Charge f is that irrespective of the physiological action of its specific ingredients the ultimate effects of the product are materially different in concept from the ultimate effect of any other cream offered for the purpose. The representation in Charge g is that the use of the product embodies a new concept in producing the result.