# Petition for Writ of Certiorari — American Airlines, Inc. v. North American Airlines, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386408_0189%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1956 - **Citation:** 351 U.S. 79 ## Text 2 | = ‘ ~~ : e b - ‘ f ‘ Si preute Court of the Alyited ’ Satis . WepoBER Tena cd + jit ” No Varo an: AL es. Exc... Bes poitd a : PETITIO wt €OR WRIT OF CERTIORARI TO THE “UNITED STATES COURT OF APPEALS FOR THE ‘PISTRICT OF COL UMBIA CIRCUIT J 3 2 HlowarD C. Wesr wou, .¢ = j mu ; re ft ; iit U. . i TT, be) a het RSPR FY 7 Sa a eae BUrReME ~e ‘+. SER21-1955 . ‘ ~i @- Cot _ p | . [_naRoup B. WILLEY,. Clark - INTHE. ~. es J. -Raxpotrrn Wiuirses, 1 Unien Trnst Bhig., Watirigton 5... C, "» ad , ‘ 2 ~~ } Page NNN CN oak ers ob «ans Medaiea cha bes alco om “Supisdichion ©... 2.05... ee ies rr epteeeees ror aS Questions Presented ..... SiS SERS SAS RW AN Saw See Oley Tere 2 Statute Involved. Ghee sesenenenet ‘eukaea ans Sree ye ger 33 Statement = ...... Ee ge eoree eer ees VAR ee Raewses ® 5 Reasons. for Granting the W it eke Poeeee wa sevecsaese ee ‘1s SEO a eres ye a eee ee Cai cae Ca ee ae Appendix | —— and Judgment Below) Cer ay rere bs i . i 4 i : € ITATIONS - Cases: Aetna Gestalt & Sure ty Co..¥. Aetna Auto Finance, lzo — i rs rc ae te a rn eae 16 INDEX Charles of the Ritz v. Federal Trade "Commission, 143 F. e ee eh es ah eo Sea chao DDD Corp. v. Fede sa Trade.Commission, 125 F. 2d 6 >, 662... Eugene Dicetzgen Co. ve heated Trade C ommisston, 142 ge AR: UCASE Seated ry Sa ee ere eae 2} ‘Federal Trade Commission V. ee P.W. Paper Co., 328 U.S. 193° A Federal. Trade Commission v. Algoma Co., 291 U.S. 67, 81. ..20, "25 “Federal Trade Contmission v. Gratz, 253 U S. 421, 427-428. . he 16, 20, 23 Federal Trade Commission V. Ki: ppel do Bro., 29) U.S. 304, BU See ak Pe ei ae he cee es Vaan SP Te Prt 20, 28 Federal Trade ‘Commission’ V. Klesner, 280 U.S. 19..%.. “3, 15, 23 Federal ‘Trade fmmission -v. Milling Co., 238° us . ZF, 217-218 cence eee eater tected eee ee ee teen ee ee eee dd, 25 Federal Trade Commission v. Morton Salt € 'o., 334 U.S. 39°” 17 Federal Trade Commission v. Motion Picture Aw. : Co... 344 Se SS a Lele oe eek Aca Ra Oe CK La cries 26 23 Pedsrel Trade Commission v. Raladam Co., 283 U. 643. 648 -¥ ""T6. 18, 21, 23 Federal Tr ade Coiniibaaen v. Real Products Corp., 90 F.2d 617 24 Federal Trade Com%nission v. Ruberoid Co,, 3483 U.S. 470... -17 Calter v. Federal Trade Commission, 186 ee OO aca eens 24 Gimbel Bros. v. Federal Trade Commission, 116 F.2d "578, 579 -19 Greyhound Corp. v. Goberna, 128 F.2d 806, 807-808......... 17 Fillman Periodicals v. Federal Trade Commission, 174 F.2d ° 122 Heuschold Finance Corp. V.. ‘General Finance Credit Corp., 49 F, Supp. 541, 542 ............. Darts eevase ciate vee 19 = a Index Continued Page Jacob Siegel Co v. Fede ral Trade Commission, $27 U.S. a , eh, WUE oo xs y ee eka wah ce tee Ru beeeeen uve uae pt Koch v. Federal —— Peasnsloaisil 266 F: 2d 319319 .:.... 20 Moretrench: Corp,.v. Federal Trade Commissioi, 127 F.2d 2 792 4a 795 D as K6 Mee Ce CES oe Beh EES OO Bee SO a Oe cee Fae 25 ony Club vy. All Nevy Club, 85 F. Supp. 679, 682... +... 9 New American Library vy. Federal Trade Commission, 2138 EE Eee PEE Ce eee LEN PVT ee 21 Ohio Leather Co. v. Fede ral Trade Coumineion, 45 F.2d 39, 41h 21 °- Pep. Boys—Manny, . Moe and Jack vy. Federal. Trade Com- — monmnem, TES: FOR 206, BOE e . 4 eels on i . » @ Pursuant to this Re ul ition, the responde nt'applied to ° the Civil Aeronautics Board on, Oc tober 6, 1952 for permission toruse the name North. AY mericapy Ais lines, Ine. Ri 1) and the proceeding on'tlie appHeation was assigned Docket No. ore CR. 5). The petitioner thereupon objected to the grant of the application in Docket No. 5774, and complained that the use and adv ertising of the wame North Amerj- ‘an Airlines caus ~ pubHe to confuse the identity of he respondent with@hat of the petitioner and con- stitdted an unfair or “dec ‘eptite: practice -or unfair method 6f competition in violation of Section 411 of the Civil Aeronautics Act (Ht. 5). The Civil. Aeronautics - Board. ina single oNler set. for heari ing before an Ex: uniner. respondent’s applica- :tion to change its’ registered name, Docket No.. 5774; assigned Docket No. 5928 to a proceeding under See- tion 411 of the Act in response to the, petitioner’s ob- Jeétion and complaint. that use of the name North American Airlines was in violation of that section; and consolidated the proceeding in Docket No. 5774 With the preceeding-in Docket No, 5928 for hearing hefore the same Examiner (R. 3-5).. In another order ‘the petitioner, as the complainant, was permitted to intervene and become a party to support’ the allega- tions in its complaint to the Board CR. 7). 4 ( P he. $291 DR, but there the pref fatory statement hae honk omitted. It shonld alse be noted that several regulafions—substan- tively. identical_—were adopted _ simultaneously, each regulation being applicable to a different type of carrier in’ ace ‘ordanee -w ith © their different types of ope rating guthority. -Thus, one regulation was applicable to carriers holding certificates of convenience and + necessity (14 C.FLR.§ 202.8), w hereds another regulation Was ap-- licable to the large irregular chrriers: holding letters of registra- tion (14. CER § 291.28), °° "md. ro) 8 : f ° 3 Oo . The only issue in this consolidated proceeding was » Whether the respondent's use of and advertising itself -under the name North Aineric ‘aay Airlines, Ine., Cor “North American’?) was an unfair or dec ‘eptive: prac. tice or an unfair method of competition gexeenl the purview of Section 411 (R:210, n. 10). At the: hearing. before a Civil Aeronautics Board Examiner in the consolidated proceeding, both the peti- tioner (R. 221) and the resp: mdent (R. 223) introduced. evidence. Sixteen witnesses testified and numerous, - exhibits were received in evidence. . In due course the Examiner issuéd an|exhaustive Initial Decision finding . that the. respondent's. use of the North American name violated Seetion ‘411 (RR. 184-199).- The réspondent filed élaborate exe eptions with the Civil Aeronautics Board; and after the’ normal procedure of briefing and oral argument (R. 200) the Board issued, its decision -ateompanied by an. opinion (R, 199-229) in whieh it. specifically adopted numerous of ;the findings made ' bythe Examiner and entered additional findings and conclusions of itXewn, on the hasis of which it entered a cease and desist order agaist the respondent under ‘Section 411 ay 229-230). FINDINGS AND? DECISION’ OF THE IVIL Aeon AU ries Bo ARD , - On the evid@ee the Board found that .the publie confused the: respordent with thé petitioner because ofthe respondent’s usd of the names North American and North American Airlines: and their similarity to the names-e ‘ommonly- understood te-refer to the peti- tioner, i.e., American and American Airlines (R. 201). ° * Both be fore the Board and before the lower court the respond. 7 ‘ent argued that the words ‘Amery an’’ and ** ‘Ameritan. Airlines’? have ‘not acquired a secondaf® ineahing signifying the petitioner.” ; * * > e 5 ? Blaisdell. The Fede ral Tradz ERT RC 74 (1932) : ‘Ww ihe Apyiratsal of the Work of: the, Federal Trade Commission, 32°Col. L. Revi 272 (1932). sei 7 a os ae Of the filing of the complaint before the Commission was not in the public interest.”* 280.U.S 3S. at 24. Nonetheless there are some passages in the Klesner - opinion which, taken .out of context, might suggest that. thys ,! Court meant that customer confusion in name similarity cases, however Widespreac ad, could not he a basis for Commission ‘action urder Section 5 jot ‘the Trade Commission Act. And it was exactly this interpretation which the lower court gave to the case. The opinion below quotes from the gase (R. 422-423, in- fra pp. x-xi) and summarizes it as one which ‘‘refused enforcement where mere ¢onfusion in competing busi- ness names failed to establish ‘specific and substantial’ publie interest”? (R. 433; infra -p. xix; see discussion ‘supra p. 15). After the lower court had noted .that- the instant case likewise involves only public confusion resulting from competing business names, it held that - —absent fraudulent ‘intent to deceive and palming off by deception—thie Board has no ‘jurisdic tion” of such a case (R. 430 ; infra p. xvi). This ruling. that the panna has no “ jurisdiction’ ‘ over name gonfusion cases conflicts with am po lg under the Trade Commission Act.* ? 7 é . wnt ene 1 ° . e | ae A * Cf. Galter v. Federal Trade Commission,. 186 F.2d 810 (7th Cir, 1951), certs de nied 342, US; 818 (1951), Pep Boys—Manny: - 1941); Federal Trade Commission v. Real Products Corp., 90 I 2d 617 (2d Cir. 1937). Moreover, the suggestion in the opinion “below (R. 429,, infra p. xvid that Congress has no oT, power in this area of trade-namie Coufusion is erronecus, see S. Johnson & Son v, Johnson, 175 F.2d 176, 178 (2d Cir, 1949), and clearly confiiets with, and therefore casts doubt on, the invontestability ‘dlause in Section 15 of the Lanham Trade-mark Act, 60 Stat, 433 (1946), 15 U.S.C. § 1065. | a’ a , A Moe and Jack v. Federal Trade Commission, 122 F.2d 158 (3d Cir. | on ° ‘td ‘The lower court, in applying the A/esner decision to deny Board pencgenegin hot only ignores the facts in the Klesner case, as’ well as the most slgnifieant passages inf this Court's opinion, but also conflicts sharply with the interpretation of the same case he Id by Judge Learned’ Hand: ees ty “Keser: ... did inde ed decide that the public interest in the Controversy-was a justiciable issue .... The dispute concerned the use ofa trade- mark which the respondent Klesner had adopted. out of spite against its owner, Sammons; and th discussion left it.‘1ot altogether clear why the public had no interest in its settlement. One might. perhaps infer that if the only interést at stake is’ thaf customers shall get goods from the seller of whom they supposed. they are buving, it 4s not enough ... but it seems clear. from what the eourt has said later that this is not so [citing the Royal Milling and the Alyonen eases] . Tt weld seem, therefore, that Federal Trade Commission \ - Klesner.. . . is to be put down as dee ‘iding tha the. court may consider whether the controversy isnot in general too trivial to ‘justify the attention of the.Commission: If so, jt is doubtful whether today the s ce answer would be given:** More- trench Corp, V. Federal. Trade Commission, 427 F.2 dd: 792, 795 (1942), | oF Judge Hand's view ‘of what: tlie Klesner ease held is that generdllv entertained. Tfandler, Uufair Com- pelition and the Federal Trade Commission, B Cien, Wash. L. Rev. 399, 404 (1940)... That view would not outlaw, as not in the public interest, an order to cease and desist froni a practice affecting the public exten- sively in its air travel between Los Angeles and | Ne Ww ms ork. Fe - . 3 ¥ 7 . This Court alone can dispel’ the confusion as to the. - meaning of the Alesner case and its present vitality: - ifany. As Judge Hand says, it may well be that the. public interest issue would: not now be regarded as + justiciable, or‘at least ffot to the extent which this Court apparently determined-in 1929. And even if the case. remains vital for pur "poses of Section 5 of the’ "Frade Commission Act, there is a serious question whether. it should be applied at all—-or if go, how far— in judicial review of administrative action in the con- text of a special regulatory stattite sueh as the Civil ‘Aeronauties Act, where the agency is charged with’ a peculiar responsibility. and expertise with respect to the p ‘actices of a particular industry. - Mr. Justice Frankfurter has recently aioted* that the signfficance of judicial review of Section 5 Trade -Commission orders is highlighted ‘*by- the’ dissimilar treatment of comparable standards-entrusted té- the enforcement of the Interstate Commerce Commis- sion”? Although the oytet limits ‘of ‘“‘uitfir or deceptive practices or unfair methods of, compéti- tion’? may be determined by the courts, the findings of the Civil Aeronautics Board in, a statuterv unfair practice ‘ease in the highly specialized field -of air ‘transportation : are entitled to-considerably more weight _ than -sfinilar findings in an ordinary Tt ag Commis- sion case. See Universal Camera Corp, y. Labor Bad., 340 US. 474, 488 (1951). And the i of judicial, review of the Board’s determination to institute a Section 411 proceeding in the ‘‘publie interest’ should ~he even. more: limited: Compare this Ceurt’s recent observation that judicial review of the decision of the General Counsel to institute,an “unfair labor prae- a * : . tice’ " proceéding before the National Labor Relations ° Fede ral Trade Commission v. Ygtion Pic tuire i Co.. 844 U 8. “R92: 404 61958) (dissenting opinion). or -? Board -is: limited ‘to, determine whether there was “abuse.of diseretion.”’ Radio Officers v. Labor Board, 347- US. 17,098. (1944). Clarification by ‘this Court of the present applic ation of the Klesner case is urgently needed. 4, he paramount importance of the questions pre- . sented cau hardly be denied, This is the first case ever to reach the courts involving Section 411 of. the Civil Aeronautics Act. That section can be of great impor- tance in the regulation of. the practices of a large, rapidly expanding, and highly competitive industry. “In 1938, when the Act was passed, air transportation was conducted enly by some sixteen trunk lines, many of them very small, and swith direct competition on bat a handful of segments. Since the war, however, the doniestic trunklir es have grown to ereat size, dir ectly competing throughout the nation—with as many as five trunk carriers competing betaveen the s same pairs of points. In addition there are some thirteen local service lines, many of. which are larger than sgme of the trunk ‘arriers ‘21938. Further there co over fifty large irregular or non- -scheduled © arriers, three all-cargo éarriers, several helicopter lines, and literally innumerable small non-sc sheduled linestand air ‘*taxi”’ operators. Furthermore numerous new air carrier op- erations have appeared in the Territories. _Anid inter- nationally there has been similar expansion, with the carriers of nearly every important nation outside the — iron curtain operating to-these shores, whereas before the war there-were only two or three, and with our own international services having multiplied from prac- tically only one to many. To all of these services, with their keen and -vigorous competition. and to the vast ‘public they are serving, Section 41 I will be of . the greatest. signifieanc e unless it is emase ‘ulated. | “o Je ‘lt is now recorded history that the Trade Commis- sion, for more than-a decade, was nearly stopped in iis tracks in attempting to enforce Seetion » pt its basie Act outlawing unfair methods of competition. This was‘ accomplished principally by three opinions of this Court, in the Gratz, Raladam and Alesner cases, the very. opinions taken as gospel by the lower eourt. As outlined by Professor Handler: “The story ofthe judicial frustration of the Com- mission’s efforts to set a.plane of. competition at a decent level has been... frequently told.... In f the famous Gratz case... the Court in its oft- . quoted dictum limited the authority ‘of the Com- mission to (a) restraints of trade, (b) monopoly, and (¢) practices which prior to 1914 had been re- varded as dec ‘eptives -fraudulent or oppressive . “The (iratz case was not the only blow... . . In . Klesner the Supreme Court arrogated to ‘itself the determination of whether proceedings by the Commission were in the public interest, and in doing so, gave jurisdictional effect to directional language of the statute.- In... Raladam ... the power of the Commissiow . ... was limited to the — eases where Siete is sustained by an honest com, petitor. . “Récent ¥ vears have witnessed a ‘marke d improve- ment... and much of the mischief wrought by ~ the earlier unsympathetic and: hostile rulings has heen and is being undone... . : “There -have been significant iti inal changes. The ratio decidendt of the Gratz ease has in effect. been overruled by Fedéral Trade Commission V. Keppel: The Raladam case was -overturned by. the Wheeler-Lea Ametidments. ~The Alesner case still retains its vitality, but ‘its principal effect has heen to exclude from the Commission’s jivisdiction. minor peceadillos.”” -Unfatr Competition and the Federal Trade Commission, 8 Geo. Wash. L. Rev: 399, 400-402, 404 (1940). 29 Moa . . a It is nost disturbing that, in the first judicial inter- retation of Section 411 of the Civil Aeronautics Act, t should receive the same frosty. reception and rigid onstruction Which for years stymied enforcement of he companion. statutory provision in’ Section 5 of the Trade Commission Act. This comment seems par- Heularly apt in the instant case where—unlike the. early Trade Commission cases—the Board and the Examiner both wrote ilmminating opinions and made _ elaborate findings @s. to the diffieulties and impositions. caused the public by the name confusion in question. The opinion helow could well side-track Section 411 of. the Civil Aeronauties Act much more effectively than Gratz, Raladan and Klesner impeded Section 5 of the Trade Conamission Act. Section 411 of the Civil Aeronautics Act is of rekatively less, concern: to ‘the Civil Acronautics Roard, with its many, other regula- tory duties, than is Section > to-thesTrade Commission, | It does not have the same inceutive, as had the Trade ‘Commission during its long, phil struggle, to resist such undue judfeial restriction. . The effect of the decision below, moreover, extends "peyond the air transportation industry. As we .have seen, the court below specifically held that, in constru-. ing: Section 411 of the Civil Aeronauties Act, it was -applying its views of Section 5.of the Trade Commis- ” Attorneys for Petitioner. Covincton & BuRLING |= <> | | Of Counsel. ae a ee * 46 Stat. 703 (1930), 19 U.S.CLA. § 1387.7 ** 42°Stat.-161 (1921), ‘as amended, 49 Stat. 649 (1935), 7 U.S. C.A! § 192(a), ‘ 899 40 Stat. 507 (1918), IS U.S.C.A. § 64. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386408_0189%3A02. Public record. Not legal advice.