Before GOODRICH, KALODNER and HASTIE, Circuit Judges.
Plaintiff, a manufacturer, and defendant, a retailer, are both members of the dress industry, selling dresses in commerce. Each is incorporated in Pennsylvania. Alleging a fraudulent and injurious use of a picture of plaintiff's dress in defendant's advertising, the plaintiff brought this action under the Lanham Trade-Mark Act of 1946*fn1 for damages and injunctive relief. Defendant moved to dismiss the complaint on the ground that it failed to state a cause of action. The court granted defendant's motion on that ground and also because, in the absence of diversity of citizenship, the court believed there was no federal jurisdiction. D.C., 118 F.Supp. 251.Plaintiff appealed.
The complaint explicitly undertakes to state a cause of action "under §§ 39, 43(a) and 44(b), (h) and (i) of the Lanham Act * * *." The district court concluded that Section 44 was inapplicable but did not comment on Section 43(a) as implemented by Section 39. We think Section 43(a) is applicable.
On its face Section 43(a) seems rather clearly to cover the present claim. It provides in relevant part that "Any person who shall * * * use in connection with any goods * * * any false description or representation, including words or other symbols tending falsely to describe or represent the same, and shall cause such goods * * * to enter into commerce, * * * shall be liable to a civil action by any person * * * who believes that he is or is likely to be damaged by the use of any such false description or representation." Section 39 gives federal district courts jurisdiction of causes arising under this statute regardless of the amount in controversy or the citizenship of the litigants.
The present complaint alleges that plaintiff created and alone sold to the retail trade throughout the country a certain distinctively styled dress. To advertise this dress plaintiff published pictures of it, together with its price, $17.95, in advertisements in leading newspapers and in some two million individual mailing pieces distributed through retailers. In this way the picture and price of this dress became associated in the minds of many readers and identified as plaintiff's $17.95 dress.
It is further alleged that, at about the same time, defendant was offering for sale through mail order and otherwise in interstate commerce a dress which in fact was much inferior to plaintiff's in quality and notably different in appearance. In this connection defendant published under its name in a magazine of national circulation a display advertisement worded and designed to promote the mail order sale of its dress at a stated price of $6.95, but showing as the most prominent feature of the advertisement an actual photographic reproduction of plaintiff's dress, thus fraudulently represented as the article defendant was selling for $6.95. Plaintiff alleges that this misrepresentation caused some trade to be diverted from plaintiff to defendant and caused other trade to be lost by plaintiff as a result of the mistaken impression conveyed to those familiar with the advertising of both parties that plaintiff was offering for $17.95 a dress worth only $6.95.
In relation to the language of Section 43(a) this complaint states about as plain a use of a false representation in the description of goods sold in commerce as could be imagined. And plaintiff's alleged damage as a result of defendant's misrepresentation may well be demonstrable within the normal requirements of legal proof and in such way as to entitle plaintiff to relief authorized by the statute. Thus, Section 43(a) seems to cover this case clearly and without ambiguity.
What then is the difficulty? It is, if we rightly understand defendant's position, that before the 1946 enactment of this statute, federal courts had imposed such restrictions on liability for unfair competition that one in plaintiff's position could not recover for the kind of conduct here charged. Therefore, it is argued, federal courts should so construe the statute as to preserve these judge made limitations on liability.
We quickly dispose of a claim that relevant limitations on liability are to be derived from Mosler Safe Co. v. Ely-Norris Safe Co., 1927, 273 U.S. 132, 47 S. Ct. 314, 71 L. Ed. 578. For that case expresses no more than the Court's judgment as to the inadequacy at common law of a particular pleading of injury as the result of a defendant's misrepresentation that his product contained an important feature of another's product. Here we see no inadequacy in the present plaintiff's statement of such an injury as Section 43(a) explicitly makes the proper subject of redress.
It is also urged that before 1946 a line of cases beginning with American Washboard Co. v. Saginaw Mfg. Co., 6 Cir., 1900, 103 F. 281, established the doctrine that in the area of present concern misrepresentations about goods were actionable only if they had led or were likely to lead customers, through confusion of defendant's and plaintiff's goods, to buy the former under the misapprehension that they were the latter."Palming off", narrowly conceived, was said to be essential to any recovery. And the view has been expressed judicially that some such limitation is to be read into Section 43(a) of the Lanham Act. Chamberlain v. Columbia Pictures Corp., 9 Cir., 1951, 186 F.2d 923; Samson Crane Co. v. Union National Sales, Inc., D.C.Mass.1949, 89 F.Supp. 218, 222. But we think it could as plausibly be argued that Section 43(a) reflects the more modern viewpoint*fn2 of Section 761 of the Restatement of Torts, which provides:
"One who diverts trade from a competitor by fraudulently representing that the goods which he markets have ingredients or qualities which in fact they do not have but which the goods of the competitor do have, is liable to the competitor for the harm so caused, if,
"'(a) when making the representation he intends that it should, or knows or should know that it is likely to, divert trade from the competitor, * * *.'"
However, we reject this entire approach to the statute. We find nothing in the legislative history of the Lanham Act to justify the view that this section is merely declarative of existing law. Indeed, because we find no ambiguity in the relevant language in the statute we would doubt the propriety of resort to legislative history even if that history suggested that Congress intended less than it said. It seems to us that Congress has defined a statutory civil wrong of false representation of goods in commerce and has given a broad class of suitors injured or likely to be injured by such wrong the right to relief in the federal courts. This statutory tort is defined in language which differentiates it in some particulars from similar wrongs which have developed and have become defined in the judge made law of unfair competition. Perhaps this statutory tort bears closest resemblance to the already noted tort of false advertising to the detriment of a competitor, as formulated by the American Law Institute out of materials of the evolving common law of unfair competition. See Torts Restatement, Section 761, supra. But however similar to or different from pre-existing law, here is a provision of a federal statute which, with clarity and precision adequate for judicial administration, creates and ...