UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
February 27, 1940
EDUCATORS ASS'N, INC., ET AL.
FEDERAL TRADE COMMISSION.
Before SWAN, CHASE, and CLARK, Circuit Judges.
In a petition for rehearing the Federal Trade Commission has asked us to reconsider our modification of its order to permit Leo L. Tully to continue to do business under the trade name Educators Association provided the trade name is accompanied by words which reveal its true character. The main ground of the petition is that such a modification involves a complete contradiction which makes the elimination of the trade name itself necessary under the rule set forth in Heusner & Son v. Federal Trade Commission, 3 Cir., 106 F.2d 596, and El Moro Cigar Co. v. Federal Trade Commission, 4 Cir., 107 F.2d 429. But the difference between those cases and this one is that in them the offending word "Havana" was falsely descriptive of the product sold. Here the deception is only as to the character of the seller. We purposely left the needed modification indefinite before in order that the parties might have an opportunity to work that out unhampered by our decision. Without meaning to curtail their freedom of action in that respect now, we venture the suggestion that the modification might consist of a suitable statmeent, to accompany the use of the trade name in each instance, to the effect that Educators Association is only a trade name under which books published by Educators Association, Inc., are distributed for profit.
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