111

JACKSON, J., concurring.

his personal discretion in determining whether a particular investigation should be launched. Delay might do injury beyond repair. The pyramiding in Washington of all decisions on law enforcement would be apt to end in paralysis. To tempt the Administrator to solve the problem by supplying all his offices with subpoenas signed in blank would not further the development of orderly and responsible administration. These considerations reinforce the construction of the Act which allows the Administrator authority to delegate his subpoena power.

The other objections to the subpoenas are without merit.

We reverse the judgment in Fleming v. Mohawk Wrecking & Lumber Co., and affirm the judgment in Raley v. Fleming.

MR. JUSTICE JACKSON, concurring.

So ordered.

I concur in the opinion and result. But the issue here is so related to other problems that I desire to state my grounds.

I would be reluctant to adopt a construction of an Act, such as the Emergency Price Control Act, which would certainly impede its administration unless it were necessary to carry out the intent of Congress or to protect fundamental individual rights.

If the Administrator may not delegate his power to sign subpoenas but must personally sign all subpoenas issued in the process of enforcement throughout the United States, one of two practices would be certain to result. He might sign large batches of blank subpoenas and turn them over to subordinates to be filled in over his signature. Or he might sign batches of subpoenas already made out by subordinates, probably without reading them and certainly without examining the causes for their issuance or

JACKSON, J., concurring.

331 U.S.

the scope of the information required. The personal signature of the Administrator on the subpoena under those circumstances is no protection to individual rights.

Of all the subpoenas issued by administrative authority, a very small percentage are contested. The important thing for protection of the individual is that when he does have reasons for resisting obedience he can obtain a hearing. I am in doubt as to whether under this Act and the regulations for its administration a person who has reasons for resisting the subpoena has any administrative review or remedy. But in any event he cannot be punished for contempt until a court order for its enforcement has issued and has been disobeyed.

Enforcement of such subpoenas by the courts is not and should not be automatic. So long as they are subject to full inquiry at this point it does not seem to me important to the individual or inconsistent with the policy of Congress that the subpoena issue by a subordinate of the Administrator. If the courts were to be shorn of their power of independent inquiry before enforcement, and I have thought we were tending that way, cf. dissent in Penfield Co. v. S. E. C., 330 U. S. 585, I should expect Congress to intend greater responsibility at the point of original issue. I concur only because I think adequate judicial safeguards exist.

Syllabus.

CHAMPION SPARK PLUG CO. v. SANDERS ET AL.,

DOING BUSINESS AS PERFECT

RECONDITION

SPARK PLUG CO.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE

SECOND CIRCUIT.

No. 680. Argued April 2, 3, 1947-Decided April 28, 1947.

1. Respondents engaged in the business of repairing used trademarked spark plugs and reselling them without removing the original trade marks. In a suit by the manufacturer, the trial court found that respondents had infringed the trade mark but that there had been no fraud or palming off. It denied an accounting but enjoined further infringement. Held: The equities of this case are satisfied by a decree requiring that the word "repaired" or "used" be plainly and durably stamped on each plug and that the containers and printed matter used in connection with the sales clearly show that the plugs are used and reconditioned by respondents, giving their names and address-even though the decree does not require that the trade marks be removed. Pp. 126–132.

2. Under the Trade Mark Act of 1905, a finding that a trade mark has been infringed does not necessarily require that an accounting be ordered where an injunction will satisfy the equities of the case. P. 131.

3. In the circumstances of this case, a finding that respondents had also engaged in unfair competition does not require more stringent controls or that an accounting be ordered. Pp. 130-132. 156 F. 2d 488, affirmed.

The District Court found that respondents had infringed petitioner's trade mark, enjoined further infringement, and denied an accounting. 56 F. Supp. 782, 61 F. Supp. 247. The Circuit Court of Appeals modified the decree in certain details. 156 F. 2d 488. This Court granted certiorari. 329 U. S. 709. Affirmed, p. 132.

Samuel E. Darby, Jr. argued the cause for petitioner. With him on the brief were Wilbur Owen and Carl F. Schaffer.

Opinion of the Court.

331 U.S.

John Wilson Hood argued the cause and filed a brief for respondents.

Opinion of the Court by MR. JUSTICE DOUGLAS, announced by MR. JUSTICE BLACK.

Petitioner is a manufacturer of spark plugs which it sells under the trade mark "Champion." Respondents collect the used plugs, repair and recondition them, and resell them. Respondents retain the word "Champion" on the repaired or reconditioned plugs. The outside box or carton in which the plugs are packed has stamped on it the word "Champion," together with the letter and figure denoting the particular style or type. They also have printed on them "Perfect Process Spark Plugs Guaranteed Dependable" and "Perfect Process Renewed Spark Plugs." Each carton contains smaller boxes in which the plugs are individually packed. These inside boxes also carry legends indicating that the plug has been renewed.1 But respondent company's business name or address is not printed on the cartons. It supplies customers with petitioner's charts containing recommendations for the use of Champion plugs. On each individual plug is stamped in small letters, blue on black, the word "Renewed," which at times is almost illegible.

Petitioner brought this suit in the District Court, charging infringement of its trade mark and unfair competition. See Judicial Code § 24 (1), (7), 28 U. S. C. § 41 (1), (7). The District Court found that respondents had infringed the trade mark. It enjoined them from offering or selling

1 "The process used in renewing this plug has been developed through 10 years continuous experience. This Spark Plug has been tested for firing under compression before packing."

"This Spark Plug is guaranteed to be a selected used Spark Plug, thoroughly renewed and in perfect mechanical condition and is guaranteed to give satisfactory service for 10,000 miles."

125

Opinion of the Court.

any of petitioner's plugs which had been repaired or reconditioned unless (a) the trade mark and type and style marks were removed, (b) the plugs were repainted with a durable grey, brown, orange, or green paint, (c) the word "REPAIRED” was stamped into the plug in letters of such size and depth as to retain enough white paint to display distinctly each letter of the word, (d) the cartons in which the plugs were packed carried a legend indicating that they contained used spark plugs originally made by petitioner and repaired and made fit for use up to 10,000 miles by respondent company. The District Court denied an accounting. See 56 F. Supp. 782, 61 F. Supp. 247.

The Circuit Court of Appeals held that respondents not only had infringed petitioner's trade mark but also were guilty of unfair competition. It likewise denied an accounting but modified the decree in the following respects: (a) it eliminated the provision requiring the trade mark and type and style marks to be removed from the repaired or reconditioned plugs; (b) it substituted for the requirement that the word "REPAIRED" be stamped into the plug, etc., a provision that the word "REPAIRED" or "USED" be stamped and baked on the plug by an electrical hot press in a contrasting color so as to be clearly and distinctly visible, the plug having been completely covered by permanent aluminum paint or other paint or lacquer; and (c) it eliminated the provision specifying the precise legend to be printed on the cartons and substituted there

2 The prescribed legend read:

"Used spark plug (s) originally made by Champion Spark Plug Company repaired and made fit for use up to 10,000 miles by Perfect Recondition Spark Plug Co., 1133 Bedford Avenue, Brooklyn, N. Y."

The decree also provided:

"the name and address of the defendants to be larger and more prominent than the legend itself, and the name of plaintiff may be in slightly larger type than the rest of the body of the legend."