now takes the position that its combs marked 'rubber-resin' are, in fact, made of such substances and that there is no misrepresentation or intention to represent to the purchasers thereof that the same are, in fact, made of 'rubber' or 'hard rubber;' that the issuance of such a cease and desist order is a condition precedent to an action for the civil penalty provided for in the Federal Trade Commission Act; that this requires a proceeding de novo and that this action is fatally defective by reason thereof.
If this were a simple problem in semantics, there might be some merit to defendant's contention. But it is not. It is a substantive controversy as to trade terms which have gained a special meaning by their use and acceptance in the comb making industry over a period of years. By the device of giving them a secondary meaning, which was rejected by the Commission on appropriate evidence, defendant would have us frustrate the Commission's order which defendant says is not broad enough to bar its present maneuver. With this we cannot agree.
No question has been raised as to the application of the maximum penalty to each breach of the Commission's order and we do not discuss it.
Defendant insinuates that the Commission has been guilty of laches and is estopped from proceeding because it was informed in February 1951 by one of the Commission's staff that the Commission would not issue a complaint against it because of the use of the new process. These defenses are not available to the defendant and the Commission properly so found. The equitable defenses of estoppel and laches do not apply against the Government in a suit by it in the public interest. Federal Trade Commission v. Algoma Lumber Co., 291 U.S. 67, 80, 54 S. Ct. 315, 78 L. Ed. 655; Federal Trade Commission v. Bunte Bros. Inc., 312 U.S. 349, 352, 61 S. Ct. 580, 85 L. Ed. 881; Utah Power & Light Co. v. United States, 243 U.S. 389, 409, 37 S. Ct. 387, 61 L. Ed. 791. The same rule applies to the hearings of a public agency when it is acting in its administrative or judicial capacity. Wallace Corp. v. N.L.R.B., 323 U.S. 248, 253, 65 S. Ct. 238, 89 L. Ed. 1435; P. Lorillard Co. v. F.T.C., 4 Cir., 186 F.2d 52, 55-56.
In the case before us, we find that the Commission's order does not go beyond the bounds of the complaint and that its interpretation of its order is a proper one. See Masland Duraleather Co., v. F.T.C., 3 Cir., 1929, 34 F.2d 733, 736; Arrow Metal Products Corporation v. F.T.C., 3 Cir., 1957, 249 F.2d 83; Jacob Siegel v. F.T.C., 3 Cir., 1944, 150 F.2d 751; Marietta Mfg. Co. v. F.T.C., 7 Cir., 1931, 50 F.2d 641.
We have examined Milk and Ice Cream Can Institute v. F.T.C., 7 Cir., 1946, 152 F.2d 478 and Arrow Metal Products Corporation v. F.T.C., supra, on which defendant so heavily relies and find them inapplicable. The former was a proceeding against an unincorporated trade association, the members of which manufactured practically all of the milk and ice cream cans sold and distributed in the United States. The cans were shipped f.o.b. their various plants and an adjustment was made in freight rates so that the delivered price was the same to all purchasers regardless of who sold and the distance shipped. It did not involve the use of trade names or the names of manufactured products. The latter case really supports the position of the plaintiff. There the Commission found that the use of the term 'porcenamel' to describe appellant's awning products carried with it a representation that the awning products were coated with porcelain enamel, when they were actually coated with an organic plastic resin. The Commission entered a cease and desist order and approved the Hearing Examiner's findings. As indicated, this was approved by the District Court and by our Court of Appeals.
Summary judgment will be entered for the plaintiff. Counsel will submit an appropriate order.