Exhibits 10, 14, 20, 21, 50, and 56 do not simulate the exclusive and distinctive features of complainant's products sufficiently to amount to unfair methods of competition.

The fact that the owner of the lighter admitted in evidence as exhibit 14 took the lighter to Art Metal Works, Inc., for repair is not of considerable probative value in determining whether the public is likely to be deceived. This is the sole instance of this nature respecting imported lighters which has been called to our attention. In view of the fact that the two articles have been submitted to the Commission, we can judge correctly as to resemblances and tendency to deceive, and evidence indicating deception in one isolated case is of little assistance.

CONCLUSION

The Commission reaffirms its findings of October 27, 1933, insofar as they relate to the question of patent infringement, and modifies its findings on the subject of simulation to the extent above indicated.

RECOMMENDATION

The United States Tariff Commission recommends that the President direct the Secretary of the Treasury to instruct customs officers to exclude from entry into the United States the following cigar lighters, whether or not attached to or forming parts of or combined with other articles:

(a) Any cigar lighter having a lighter mechanism consisting of an abradant wheel journaled on top of the lighter receptacle and approximately in the center thereof, with a snuffer positioned on one side of the wheel and a finger piece positioned on the other side of the wheel, the finger piece being designed to raise the snuffer and revolve the wheel when pressure is applied downwardly on the finger piece and to cause the automatic closing of the snuffer and extinguishing of the flame when such downward pressure is released, the lighter mechanism having substantially the appearance of the mechanisms of exhibits 4 and 31 in this investigation.

(b) Until and including June 11, 1945, cigar lighters patented in United States Letters Patent No. 1673727, except where the importation is made under license of the registered owner of said United States Letters Patent.

United States Letters Patent No. 1673727 was reissued by the Patent Office as Reissue No. 19023, granted December 12, 1933, which date is subsequent to the rehearing in this investigation. In the reissued patent, claims 1 to 15 are identical with claims 1 to 15 of the original patent (1673727) considered by the Commission in the investigation. Two claims were added. No change needs to be made in the findings and recommendations of the Commission as the result of this reissue; but, in accordance with United States Code, Supplement VI, title 35, section 64, all references concerning infringement of Patent No. 1673727 should be read as concerning Reissue No. 19023.

APPENDIX

1. ORDER OF THE PRESIDENT PROHIBITING THE IMPORTATION OF CERTAIN

CIGAR LIGHTERS

TREASURY DEPARTMENT,

BUREAU OF CUSTOMS, Washington, March 28, 1934.

To collectors of customs and others concerned:

The following order of the President issued on March 17, 1934, under the provisions of section 337 of the Tariff Act of 1930, excluding the importation into the United States of certain merchandise mentioned in the said order is published for your information and guidance:

Pursuant to a complaint filed by the Art Metal Works, Incorporated, of Newark, New Jersey, asking relief under the provisions of section 337, title III, part II, of the Tariff Act of 1930, from alleged unfair methods of competition and unfair acts in the importation and sale of certain cigar lighters, the United States Tariff Commission made an investigation and afforded appropriate hearings to parties interested under the provisions of subdivisions (b) and (c) of that section. On January 4, 1934, copies of the Commission's findings were mailed to importers or consignees. The time for an appeal to the Court of Customs and Patent Appeals for a review of the findings of the Commission has expired without an appeal having been filed.

By order of the President dated July 6, 1933, under subdivision (f) of section 337 of the Tariff Act of 1930, certain cigar lighters were forbidden entry into the United States, except under bond. The record of the hearings and findings of the Tariff Commission has established to my satisfaction the existence of unfair methods of competition or unfair acts within the meaning of said section 337. I therefore direct that you exclude from entry into the United States the following cigar lighters, whether or not attached to or forming parts of or combined with other articles:

(a) Any cigar lighter having a lighter mechanism consisting of an abradant wheel journaled on top of the lighter receptacle and approximately in the center thereof, with a snuffer positioned on one side of the wheel and a finger piece positioned on the other side of the wheel, the finger piece being designed to raise the snuffer and revolve the wheel when pressure is applied downwardly on the finger piece and to cause the automatic closing of the snuffer and extinguishing of the flame when such downward pressure is released, the lighter mechanism having substantially the appearance of the mechanisms of exhibits 4 or 31 in this investigation.

(b) Until and including June 11, 1945, cigar lighters patented in United States Letters Patent Reissue No. 19023, except where the importation is made under license of the registered owner of said United States Letters Patent.

2. INSTRUCTIONS TO CUSTOMS OFFICERS

With regard to any merchandise the importation of which is prohibited by the President's order of March 17, 1934, supra, and which merchandise has been released heretofore under bond pending a final decision in the matter, the persons concerned should be called upon to export the said merchandise to a foreign country under customs supervision. If exportation is not effected within 30 days after notice so to do, the bonds covering such merchandise which has not

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been returned to customs custody should then be transmitted to the United States attorney for the institution of appropriate proceedings. In lieu of exportation, the merchandise may be destroyed under customs supervision upon the written request of the importer.

In the event that any merchandise excluded from entry by the President's order, supra, is offered for entry in your district hereafter, the entry thereof should be refused. In case of doubt as to the admissibility into the United States of any shipment, you should submit a report thereof to the Bureau of Customs for instructions, together with a sample of the merchandise.

The President's order of March 17, 1934, supersedes the temporary order of the President published in Bureau of Customs Circular Letter No. 1014, dated July 8, 1933.

JAMES H. MOYLE, Commissioner of Customs.

(The foregoing instructions to customs officers were promulgated by the Secretary of the Treasury on April 9, 1934, as T.D. 47001.)