In the Matter of the Complaint Against FUN HOUSE P. O. Box 239 at Gary, Indiana 46401 P.S. Docket No. 1/47;09/06/72
Wenchel, Adam G.
The original complaint, citing the name and address "R.H., P. O. Box 239, Gary Indiana," in the above-numbered proceeding, was filed on January 18, 1972, to which Respondent filed an answer. Thereafter, following a hearing the Hearing Examiner to whom the proceeding was assigned issued an Initial Decision recommending the issuance of a remedial order under 39 U.S.C. 3005. Upon failure of Respondent to appeal, the Judicial Officer, on April 19, 1972, issued an order under 39 U.S.C. 3005 against the name and address used in the advertising on which the complaint was based.
The matter is presently before the Judicial Officer upon the Petition of Complainant seeking a supplemental order under section 952.30 1/ of the applicable Rules of Practice against the name and address shown in the caption.
Respondent has filed an answer not contesting any of the allegations of the Petition except that Respondent denies Exhibit "A" to the Petition is identical to Exhibit "I" in the original proceeding "and in further answer states the fact to be that the advertisement taken from the Pittsburgh Courier plainly states that the substance is an imitation; that no one could be misled into beleiving (sic) that he was purchasing an aphrodisiac stimulant; that the advertisement further indicates that the product is a great gag."
Exhibit "A" is as follows:
"MEXICAN SPANISH FLY
IN Liquid Form (imitation)
A great gag] It is powerful--just a
drop or two will start the fun.
Keep a supply on hand for parties,
conventions, etc. 1 FL. OZ. $3.00
FUN HOUSE, P.O. Box 239
GARY, IND. 40401"
The word "(imitation)" does not appear in Exhibit "I". Otherwise and except for the trade name used, Exhibits "A" and "I" are identical.
In the original proceeding the Hearing Examiner in addition to the necessary jurisdictional findings made findings to the effect that the product there involved was falsely represented to be Spanish Fly and that the product is falsely represented to be an effective aphrodisiac or sexual stimulant.
The question raised by Respondent's answer to the Petition is whether the word "imitation" so differentiates the new advertising from the old that the findings of the Hearing Examiner would not have application here.
As stated the Hearing Examiner found that the advertising in representing the product contained Spanish Fly thereby also represented it to be an aphrodisiac or sex stimulant.
The current advertising represents the product to be an imitation of Spanish Fly. This I find means that it resembles and serves the same function as Spanish Fly. Accordingly, the Hearing Examiner's finding that the advertising represents the product to be an aphrodisiac or sex stimulant is applicable to the current advertising. Respondent concedes that the product is not an aphrodisiac or sex stimulant.
Upon consideration of the record before me, I conclude that the remedial order heretofore issued in P.S. Docket No. 1/47 is being evaded by operation of the enterprise under the name shown in the caption. In consideration of that conclusion, a supplemental order will be issued against Fun House, P. O. Box 239 at Gary, Indiana 40401 (46401).
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