Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
The Federal Trade Commission, acting under the authority of section 5 of the Act of Congress approved September 26, 1914, 38 Stat. 717, 719 (15 USCA § 45), on June 10, 1929, served upon the respondent its order to cease and desist in a proceeding before the Commission entitled "In the Matter of Hoboken White Lead & Color Works, Inc., Docket No. 1565." This proceeding was based upon a complaint, issued February 19, 1929, pursuant to the statute, which charged the respondent with the practice of misbranding and misrepresenting its paint materials and paint pigments, sold and transported in interstate commerce in violation of the act declaring unfair methods of competition to be unlawful. In the same proceeding, on January 19, 1931, this court, upon consent of the parties, entered the following order:
"It is now further ordered, adjudged and decreed that the respondent, Hoboken White Lead and Color Works, Inc., its officers, agents, representatives, servants, and employees, cease and desist in the course or conduct of the sale of paint material or paint pigment in interstate commerce --
"(1) From using the words 'White Lead,' or word or words of like import, upon the containers of, or with which to brand, label, represent, advertise, or describe, any such paint material or paint pigment which contains less than 50% white lead, lead carbonate, or lead sulphate; and, if and when said paint material or paint pigment is not composed wholly of white lead or of lead carbonate or lead sulphate or of the two in combination, but contains white lead, lead carbonate, or lead sulphate as its principal and predominant ingredient to the extent of not less than 50% by weight of the product, from similarly using said words 'White Lead,' or word or words of like import, unless immediately preceded in equally conspicuous form and color by a word or words clearly indicating that said paint material or paint pigment is not composed wholly of white lead.
"(2) From using the words 'Zinc Lead,' or word or words of like import, upon the containers of, or with which to advertise, brand, label, represent, or describe any such paint material or paint pigment when said product is not in fact zinc lead or is not in fact wholly composed of zinc in combination with lead carbonate or lead sulphate."
Service of a copy of this order was made January 21, 1931.
Since that time, it is charged, the respondent has directly and indirectly caused its paint materials and paint pigments to be sold and transported in interstate commerce, to wit, from the state of New Jersey to the state of New York, under brands and labels in violation of this order. It is established by affidavits that on March 26, May 7, July 3, September 28, and October 15, 1931, it sold and transported in interstate commerce, from New Jersey to New York, to retail paint dealers, in sealed containers, paint materials under various brands and labels affixed by respondent to such cans containing the paint and materials as follows:
Contains NEW PROCESS Used for
White Lead ZINC LEAD Finishing Coats