Blue Diamond´s Autopsy.

[lazard]

Some time ago I gathered all that was within reach of my hand to observe possible changes aesthetic and formals on Vacumatics rings laminate suffered as a result of the order received by the Federal Trade Commission, I think that as a result of this order as well in all cases the changes occurred chronologically coincident.

 

As well is true that different authors is partially interested in the subject I think that in this topic, we get it comprehensively. In any case we will have much of the information gathered in one single corpus.

 

On different days, as I can go making presentable and summarizing my info, I am going to upload here documents and photographs; from the rules of the FTC, a subsequent appeal of Parker and highly intelligent and very wise final decision of the FTC's in December 17, 1946, as curiosities to finally go to the analysis of changes in aspect suffered as a result of the necessary adaptation which meant of this order and the Lifetime Guarantee.

We'll see how near of this dates Parker distinguished clip and band and we wonder aloud whether, regardless of the final change suffered, Parker tried some other form of change in band appearance.

Let us start at the beginning.

 

ANNUAL REPORT OF THE FEDERAL TRADE COMMISSION FOR THE FISCAL YEAR ENDED JUNE 30 1945

 

Fountain pen manufacturers.--W. A Sheaffer Pen Co., Fort Madison, Iowa (4337); The Parker Pen Co., Janesville, Wis. (4338); Eversharp, Inc., Chicago (4590), and L.E. Waterman Co., New York (4617), were ordered to cease making unqualified representations that their fountain pens are unconditionally guaranteed for the life of the user or for any other designated period, when a service charge, usually 35 cents, is made for repairs or adjustments. The respondents were ordered to discontinue using such terms as “Lifetime,” “Guaranteed for Life,” “Life Contract Guarantee,” “Guaranteed Forever,” or “Guaranteed for a Century” to describe or refer to their pens, and representing that the pens are unconditionally guaranteed for any designated period of time, unless the respondents, without expense to the user, make repairs or replacement of parts which may be necessitated during the designated period by any cause other than willful damage or abuse. The orders did not prohibit the respondents from representing truthfully that the service on their pens (as distinguished from the pens themselves) is guaranteed for life or other designated period, even though a charge is imposed in connection With such servicing, providing the terms of the guarantee, including the amount of the charge, are clearly and conspicuously disclosed in immediate conjunction with such representations.

Edited September 4, 2013 by lazard

[lazard]

We continue with the wise and just EVANS, Circuit Judge decision in the appeal of Parker that, despite considering their demands, in practice makes it uncomfortable to use terms such as "lifetime guarantee", "guaranteed life", "Life guaranteed contract "," life Guarantee Agreement or any similar words.

 

I think the post, though long, just for the forced and almost comical argument's of Parker attorneys relating the Blue Diamond with an asterisk, it might be worth.

Parker is now "the winner". The Circuit Judge decision is just because reverses FTC previous order and allows to Parker the free market, so:

The order of the Commission must be modified to permit to Parker to continue its advertisements provided it will place the words of limitation "Pens marked with the Blue Diamond are guaranteed for the life of the owner against everything except loss or intentional damage, subject only to a charge of 35 for postage, insurance and handling, provided complete pen is returned for service."

and is wise because, respecting the free market, forces to Parker do make the ad with same typoghapy size of the guarantee and its cost so that no consumer deception

...close to the words, "Life Guarantee," etc. and in print of the same size as the other regular printed matter in its advertisements.

So the "Parker´s victory" is Pyrrhic and will have consequences for the Blue Diamond

 

On the other hand, the date that I quote is undoubted: December 17, 1946. CIRCUIT COURT OF APPEALS, SEVENTH CIRCUIT. 159 F.2d 509 (1946)

 

In the coming days I will upload images of cap with different rings or bands, with the collaboration of those who so wish, to find changes in them and, perhaps, why they changed.

 

 

---------------------------------------------------------------------- ooooO0Ooooo ----------------------------------------------------------------------------------

 

Ivan D. Tefft, P. J. E. Wood and O. A. Oestreich, all of Janesville, Wis., for petitioner.

Wm. T. Kelley, Chief Counsel, Donovan Divet, Sp. Atty., and Walter B. Wooden, all of Washington, D. C., for respondent.

Before EVANS, and MAJOR, Circuit Judges, and BALTZELL, District Judge.

EVANS, Circuit Judge.

 

 

 

UNITED STATES CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT.

 

December 17, 1946

THE PARKER PEN COMPANY v. THE FEDERAL TRADE COMMISSION.

 

Author: Evans

 

EVANS, Circuit Judge: We quote from the order of the Federal Trade Commission here presented for review:

"It is Ordered that the respondent, The Parker Pen Company, a corporation, and its officers, agents, representatives, and employees, directly or through any corporate or other device, in connection with the offering for sale, sale, and distribution of respondent's fountain pens in commerce * * * do forthwith cease and desist from:

 

"Using the words 'Guaranteed for Life,' 'Life Guaranteed,' 'Guaranteed Life Contract,' 'Life Contract Guarantee,' or any word or words of similar import, alone or in conjunction with any other word or words, to designate, describe, or refer to respondent's pens, or otherwise representing, directly or by implication, that such pens are unconditionally guaranteed for life, unless respondent does in fact make, without expense to the owner, any repairs or replacement of parts which may be necessitated during the life of the owner by any cause other than wilful damage or abuse.

 

"Representing, directly or by implication, that respondent's pens are unconditionally guaranteed for any designated period of time, unless respondent does in fact make, without expense to the owner, any repairs or replacement of parts which may be necessitated during such designated period by any cause other than wilful damage or abuse.

 

"Nothing contained in this order, however, shall be construed as prohibiting respondent from representing truthfully that the service on its pens (as distinguished from the pens themselves) is guaranteed for life or other designated period of time, even though a charge is imposed by respondent in connection with such servicing, provided by respondent in connection with such servicing, provided the terms of such guarantee, including the amount of such charge, are clearly and conspicuously disclosed in immediate conjunction with such representation."

 

The crux of the dispute is over the fact that respondent makes a thirty-five cents service charge each time a "lifetime guarantee" pen is brought in for repair. Because of this service charge, the Commission contends there is deception in respondent's advertisements of "Lifetime Guarantee" which deception is in violation of the statute, 15 U.S.C.A. Sec. 45(a) which prohibits "deceptive acts or practices."

 

At the threshold of our consideration of this appeal, we are confronted by the statutory edict (15 U.S.C.A. Sec. 45©) which reads, - "The findings of the Commission as to the facts, if supported by evidence, shall be conclusive." Precedent sustains this statutory command.

 

The evidence in this case consists of over a hundred exhibits, mostly copies of petitioner's advertisements. The oral evidence was of little significance. The gist of the Commission's proof lay in petitioner's advertisements.

 

We attempt a description of them so as to better evaluate the asserted substantiality of the evidence to support the Commission's finding. Over half of each advertisement was generally devoted to pictorial matter, - of the pens themselves, and of their present or potential owners (such as graduates, brides, court reporters, etc.) On the picture of the pen is a tiny blue diamond, and adjacent to this picture is a relatively large blue diamond (sometimes half an inch in length), beneath which usually, or often, appears the phrase, "Guaranteed for Life by Parker's Blue Diamond." Or, the phrase, "Guaranteed for Life" was in sizeable type, distinctive in coloration, or position, so that it was calculated to catch an eye's fleeting perusal of the contents of the advertisement. Then, in a less prominent place in said advertisement, usually at the bottom of the page, and in smaller, light print, there appeared this sentence, preceded by a small blue diamond:

 

"Pens marked with the Blue Diamond are guaranteed for the life of the owner against everything except loss or intentional damage, subject only to a charge of 35 for postage. insurance and handling, provided complete pen is returned for service."

 

The variations in the advertisements were, of course great, but throughout all of them, the Commission asserts it can be stated that emphasis was placed upon the guarantee, and negligible, insignificant, and remote attention paid to the condition attached to, or limiting, the guarantee, i.e. the payment of a 35 service charge.

 

Petitioner calls attention to the fact that this service charge is often not at all commensurate with the repair charge; that the clerical cost connected with such repair is a substantial item.

 

The charge is made irrespective of whether the pen is to be mailed to its owner or picked up by him at a branch office of petitioner. In other words, it is a flat rate charged at the time of each repair. (The charges had been lower but was evidently raised to 35 during the N.R.A. period.)

After viewing all the advertisements we can not say as a matter of law that the Commission was arbitrary in infering that deception might occur to an inattentive reader of the advertisement, misleading him into the belief that purchase of such a pen would give him a lifetime of satisfactory use, with no further expenditure required.

 

Petitioner argues that the use of the blue diamond proximate to the guarantee phrase and then proximate to the limitation of guarantee performs the equivalent function of an asterisk or similar symbol to attract the reader's attention to important, related and limiting matter. While such a contention has plausibility, it loses some of its weight when it is pointed out that the blue diamond is in the nature of a trade-mark connoting petitioner's product. A casual reader might well be excused from recognizing the peculiar dual function of petitioner's blue diamond as not only a trade mark, but an asterisk, calling his attention to an important limitation on petitioner's guarantee liability.

 

The Commission's function in protecting the public against deceptive advertising has been stated in several cases, which we will not repeat here. Their purport is that the Commission's duty is to protect the casual, one might even say the negligent, reader, as well as the vigilant and more intelligent and discerning public.

 

We have carefully searched the law of sales to discover the legal incidents of a "guarantee" (or warranty) to ascertain if such a promise or contract encompasses assurance of satisfactory performance without further incidental consideration. Aside from Cobb v. Truett, 11 So.(2d) 120 (La.) the law seems silent. From such silence we deduce the inference that a guarantee per se negatives the idea of a further consideration.

 

While studying these advertisements in trying to determine the possibility of their being deceptive, we were reminded of the analogous problem in the format of insurance policies, and from that analogy we find support for the Commission's finding. Many states now require that any limitation upon liability by the insurance company, theretofore stated in a policy, must be given equal prominence in the policy, so that the insured will not be misled by an initial and prominent statement of liability in the policy which liability is greatly whittled down in a subsequent, remote part of the policy, in fine, close type, not ordinarily read even by the intelligent and diligent insured.

 

We feel the Commission is, however, over-meticulous in denying the petitioner all right to use the phrase "Life Guarantee" or words of similar import, except on the condition that it make no further charge for repairs.

 

A guarantee is suggestive of a contract and carries a meaning somewhat akin to warranty or representation. Parties are free to make their contracts and unless deceptive words are used they may advertise their goods and define the limits of their guarantee liability.

 

If a pen be guaranteed for life, for example, we see no valid reason why such guarantee should not be limited or restricted by a statement of a fixed price for necessary repairs. Ordinarily the word, guarantee, or warantee, is incomplete unless it is used in connection with other explanatory words. To say a pen or other subject is guaranteed is meaningless. What is the guarantee? The answer to this question gives meaning to the word, guaranteed," the same is true of the words, "Guaranteed for Life" or "Life Guarantee."

Here the petitioner, in the advertisements, guaranteed it would make repairs if needed, during the life of the buyer, at 35 for each repair. To such a guarantee there can be no valid objection.

 

In the case before us, there was no evidence to show any deception occurred and none was claimed by respondent. While such evidence was not a necessary part of the respondent's case, it might have raised a doubt as to the possibility of deception through the use of the advertisement had there been a single instance of deception disclosed in all the extensive and long continued business of petitioner.

 

We conclude that the objection to petitioner's advertisement is that the limiting words of the guarantee appear in small print, plus the further fact that the location of the limiting words is some distance from the words of the guarantee.

 

In reaching our conclusion we are not unmindful of the fact that Congress made the Federal Trade Commission and not the court, the finder of the facts respecting the possibility of deception.

 

The order of the Commission must be modified to permit petitioner to continue its advertisements provided it will place the words of limitation

"Pens marked with the Blue Diamond are guaranteed for the life of the owner against everything except loss or intentional damage, subject only to a charge of 35 for postage, insurance and handling, provided complete pen is returned for service."

 

close to the words, "Life Guarantee," etc. and in print of the same size as the other regular printed matter in its advertisements.

 

The parties should endeavor to agree and, if possible, stipulate as to terms. If parties are unable to agree upon terms of the order, either party may present its proposed order, giving notice to its adversary of its action.

 

The order of the Commission is modified.

Edited September 7, 2013 by lazard

[kirchh]

Note that this ruling is NOT a "highly intelligent and very wise final decision of the FTC." It is a court ruling in a lawsuit in which the FTC was the defendant.

The FTC was forced by the Court to modify its order against Parker. The modified order was issued in 1948.

--Daniel

Edited September 8, 2013 by kirchh

[kirchh]

Note that the court rendered its opinion in the lawsuit on December 17, 1946, but its final decree ordering the FTC to modify its 1945 cease and desist order against Parker was not issued until June 6, 1947.

 

The FTC actually issued its modified order against Parker on February 9, 1948.

 

--Daniel

[lazard]

The Commission in 1946 merely quote (complete and accurate transcript):

 

Parker Pen Co., Janesville, Wis.--Seventh Circuit (Chicago) , mis-representation of

fountain pens through use of statements such as “Guaranteed For Life” and “Life

Guaranteed.”

 

and, in 1947, (complete and accurate transcript):

 

The Parker Pen Co., Janesville, Wis.--The Seventh Circuit (Chicago) modified and

affirmed the Commission’s order forbidding misleading advertising of guaranties in

connection with the sale of fountain pens.

 

I have also analyzed the Reports of the Federal Trade Commission of 1948, 1949 and 1950 and there are not more quotes to Parker Pen Co.

 

Though we do not have to wait for 1948 because, as we will document below, in 1947 second half the Blue Diamond was already dead.

In any case the purpose of this post is not certify obvious death of BD, but to observe the changes occurring in Parker Ring Laminates fpen during the twilight of Blue Diamond, it is say, the years prior to his disappearance.

 

 

 

Footnote. This is a post with a timing set preestablished, and will end for me, with a survey about Clips, Cap Bands and Date Codes, presentation of the results with a Duofold´s "wonderful gift" -quoted- for that survey participants -as Parkers in some of their surveys- It is then, at the end of my involvement and with all the data presented, when I´ll appreciate any suggestions. Until the end I'll try not to say anything only provide documents and images existing and proven and request specific info for not to encourage early dispute.

Edited September 8, 2013 by lazard

[kirchh]

 

 

The Commission in 1946 merely quote (complete and accurate transcript):

Parker Pen Co., Janesville, Wis.--Seventh Circuit (Chicago) , mis-representation of
fountain pens through use of statements such as “Guaranteed For Life” and “Life
Guaranteed.”

and, in 1947, (complete and accurate transcript):

The Parker Pen Co., Janesville, Wis.--The Seventh Circuit (Chicago) modified and
affirmed the Commission’s order forbidding misleading advertising of guaranties in
connection with the sale of fountain pens.

I have also analyzed the Reports of the Federal Trade Commission of 1948, 1949 and 1950 and there are not more quotes to Parker Pen Co.

The FTC's annual reports are summaries and are not comprehensive. The actual orders are not contained therein, and those annual reports do not represent all of the important developments, nor do they include all of the Commissions' actions.

If you are interested in researching pen history in depth, you'll need to go beyond the surface to get to all the facts. The FTC's annual reports are a good starting point, but they do not tell many of the essential parts of the story. For that information you must examine the actual orders and associated documents.

All the dates I provided are accurate.

--Daniel Edited September 8, 2013 by kirchh

[lazard]

Calm, patience. We'll see the depth of treatment at the end of the topic. At the moment we have together the FTC order and the decision of the SEVENTH CIRCUIT that I have not seen together in any web site and perhaps someone FPN users did not known it in detail. There are more users than Daniel and Lazard.

Probably we will see here more chevron bands that you believe or you think to know. At the moment you could say to us the different chevron Vacumatic bands of the 40s you know. Please, tell us how many you know. Whit that we´ll see here what you know and this will help me for know if the topic will be more or less deep. Please, tell us how many you know and description, or attach a web link or magazine article where we can see that you know about this matter. Thanks.

Edited September 8, 2013 by lazard

[kirchh]

At the moment we have together the FTC order and the decision of the SEVENTH CIRCUIT that I have not seen together in any web site and perhaps someone FPN users did not known it in detail.

The Winter 2006 issue of The PENnant may be of interest, as there is an article that discusses both of those matters.

 

--Daniel

Edited September 8, 2013 by kirchh

[lazard]

Oh, was it? Yes, I know the article by Daniel Kirchheimer and you, Daniel Kirchheimer, if you had been observant, you should know it because, in another topic recent, I quoted another article of this precisely PENnant talking with you about Sheaffer´s Taxonomy. I have read "almost" all that is known and has been written about Wirt, Conklin, Sheaffer'S and Parker. I had cleaned and put into working order hundreds of this fountain pens, so I have repaired over 200 in the last year -easily verifiable- including Vacumatic, Snorkel or One-Stroke Vacuum so although my professional work, and my income, has nothing to do with the fpens I also know of what we are speaking.

 

So with your reference you are give me the reason because in this article there is only the order of the FTC and here we have, only at present, this order, more full text of the just and wise -for me- Court of Appeals for the Seventh Circuit, and free, gratis.

 

Additionally we are going to see here the changes in clip and bands of this period.

This topic detract nothing of the article referenced and you will have here the Order, Judgment, statistics about clip, bands and code dates and finally each one -I do not- try to relate them to the order and sentence. "All this for free and with gifts for participating in the survey. :)"

Please, remember, do not forget to tell us -before we present new matter next weekend- how many vacumatic chevron cap band of the 40's you know and description, or some web link about this mattern or magazine article that meets your expectations and where we can see that you know about this matter; chevron cap bands years ´40 with code dates and clips, which is one of the final objects of this topic. This will help us, and third parties, to know the depths of our topic. Please do not forget, thanks.

Edited September 8, 2013 by lazard

[kirchh]

Oh, was it? Yes, I know the article by Daniel Kirchheimer and you, Daniel Kirchheimer, if you had been observant, you should know it because, in another topic recent, I quoted another article of this precisely PENnant talking with you about Sheaffer´s Taxonomy.

 

Yes, that's why I was surprised that you indicated that you didn't know anything about the FTC's modified order on the Parker matter in 1948, as you said:

 

I have also analyzed the Reports of the Federal Trade Commission of 1948, 1949 and 1950 and there are not more quotes to Parker Pen Co.

 

And, as you say, there are more readers here than you and I, and they might find the article of interest.

 

--Daniel

[lazard]

You can open another topic about 1948 or about your article. To me, opener of this topic, now, I do not mind this. In 1948 the BD was dead. I will not get to 1948 in my topic. I'll stop in 1947.

 

Please, remember, do not forget to tell us -before we present new matter next weekend- how many vacumatic chevron cap band of the 40's you know and description, or some web link about this mattern or magazine article that meets your expectations and where we can see that you know about this matter; chevron cap bands years ´40 with code dates and clips, which is one of the final objects of this topic. This will help us, and third parties, to know the depths of our topic. Please do not forget, thanks.

Edited September 8, 2013 by lazard

[kirchh]

Though we do not have to wait for 1948 because, as we will document below, in 1947 second half the Blue Diamond was already dead.

 

Can you clarify? Are you saying that Parker Vacumatic pens no longer had a Blue Diamond starting in the third quarter of 1947?

 

--Daniel

[lazard]

Calm and patience, someone could think that you put words in my mouth. I say nothing and less would say if you stop asking and you leave your questions at the end of my presentation -I reported as a pre-established development-. I just want to make a statistical with FPN users collaboration about the appearance of the vacs in '40, clips, code dates, chevron bands and cap rings and I can only do it if there are not continually interruptions. Each one -I dont- will extract any conclusions after observing the data and each one will observe by himself how longer is the BD and if previously there were changes and which were this in your case. This is the grace, after spending the magnifying glass in their ring laminate vacs; each one by himself.

 

For this purposes I think, as opener topic, that the preamble with the FTC order of 1945 and Judge Evans 1946 sentence seems me enough for potential participants enter into matter. However if you want to add something I think everyone will be happy but, please, do not ask me because I do not want to contaminate the data collection with my answers.

 

You, after judging rashly this post as superficial, just have to tell us how chevron bands of the 40s you know and as they are because this will help me, and third parties, to know, at the end, the depths of our topic. If you do not respond to these issue before the entry of new info we understand you know 1 or 2.

Edited September 9, 2013 by lazard

[kirchh]

Calm and patience, someone could think that you put words in my mouth. I say nothing....

 

You said,

 

in 1947 second half the Blue Diamond was already dead.

 

I did not put those words in your mouth. But I understand that you now decline to clarify your statement, which is certainly your prerogative. Therefore, its meaning stands as written.

 

You, after judging rashly this post as superficial, ...

 

Calm and patience; someone could think that you put words in my mouth.

 

just have to tell us how chevron bands of the 40s you know and as they are because this will help me, and third parties, to know, at the end, the depths of our topic. If you do not respond to these issue before the entry of new info we understand you know 1 or 2.

 

Calm and patience; someone could think that you put words in my mouth.

 

I do agree with the principle of avoiding unwarranted inferences.

 

The topic of the penmakers' responses to the FTC orders is of great interest. I have studied Sheaffer's multi-pronged and -phased approach to balancing compliance and practicality during the period in question, and their implementation of new policies and design changes, gross and subtle, make for an interesting narrative. I am not a student of other brands, however, and my knowledge and holdings outside of Sheaffer are rather limited. Parkers of the period, in particular, pose special challenges due to the ease with which parts can be interchanged among pens from different times of assembly, so a statistical examination can be a fruitful approach to teasing out the signal from the noise. I have not focused on the specific issue at hand, though I believe I've seen about seven variations of the Major cap band with angled lines spanning the last ten years or so of US Vac production; these seem to fall generally into L types (\\\\) before '46, and R types (////) by '48, with roughly an even split seen on '46-dated examples. Within each "handedness," there are the various styles with symmetrical/asymmetrical indicia flanking, staggered/full-length angled lines abutting indicia corner, number of verticals framing the indicia (0,1,2), and so on. But I emphasize that these observations are made with a rather small sample size, so there may well be far more variations than the approximately seven I recall. I wish I had the resources to make a wider study, but I try to stick to my central focus on Sheaffers, so I may not be able to contribute much more information.

 

--Daniel

[lazard]

Not everyone recognizes the / / / / chevron or 1 or 2 vertical -or when no vertical but left behind so I think this, more FTC and Judge Evans could be an interesting topic for many FPN user.

 

I have hunted 10/12 / / / / of 46, second quarter the oldest, 1 of 47 all MADE IN USA -with the caution that you point to possible frankenspen- and 48 y 49 //// Canadian. Is for that I think it is interesting the survey and to take a much larger samples and see if someone look find this in a Pen-Show -for me are very far- and, together, we try to find out if the chevron / / / / or double ring were changes introduced by Parker relates for to differentiate Lifetime guarantee with Non Lifetime guarantee -exchanging a clip is easier-. I do not claim anything but I find it interesting to spend some time with this issue. It is normal for companies that the disappearance of this attribute stay in the shadows and it is normal that curious people want something more light.

 

As you see your questions made ​​me anticipate the topic finality -I would rather not pollute the survey and that the sample was taken without knowing the finalily-. But all is well if it ends well.

Edited September 9, 2013 by lazard

[kirchh]

The speculation that Vacumatic caps are covertly coded provides yet another object lesson in the perils of believing one can swap parts without affecting the correctness of a vintage pen.

--Daniel

[FarmBoy]

When will we be discussing the relative size and position of the blue diamond on the clip?

[pajaro]

The speculation that Vacumatic caps are covertly coded provides yet another object lesson in the perils of believing one can swap parts without affecting the correctness of a vintage pen.

--Daniel

 

I am glad you posted this, not only for the excellent thought that swapping parts around on vintage pens makes them inconsistent or not correct for the production period, but for your interpretation that makes sense of the run-on sentences.

[Tom Aquinas]

It is a bit off point, but it is a pity Parker does not bring the blue diamond back for at least a limited edition. I had been hoping that the 115 anniv. LE Sonnet could have had it , for instance.