(dissenting in part).
In this case judicial approval is being accorded a 1951 order of the Federal Trade Commission — after hearings begun in 1943 and completed in 1949 on a 1943 complaint —which in the main directs the Hunt Pen Company to cease and desist from manufacturing practices not shown to have been indulged since the 1930’s. Apposite, there*282fore, is the recent remonstrance of a member of the Commission that the agency had “tackled * * * [a] problem at the tomb, instead of the womb”. See Grocery Distributors Association, 1948, 44 F.T.C. 1200, 1217. Similar concern about untimeliness negativing public interest underlies my unwillingness to lend judicial sanction to three of the four provisions of the Commission’s present order which to me seem merely obituary denunciations rather than curative interventions. But since this conception of what is funereal and futile must also embrace the dissenting postscript in which it is expressed, my views will be stated in very brief summary.
The first paragraph of the Commission’s order directs the manufacturer to cease and desist from representing that its pen points are covered with gold of fourteen carat fineness and substantial thickness. The record contains sworn testimony for the manufacturer that ever since 1939 its pens have been so coated and that its representations of that fact have been accurate and proper. The entire case to the contrary offered by the government, which bore'the burden of proof, was that analysis of some pen points manufactured by the respondent before 1939 and stamped “14KT, gold plate” revealed only an inconsequential and scarcely measurable gold wash or coating. There is no evidence that the government had examined or tested a single pen point manufactured by the respondent after 1938. In these circumstances, I think there was not substantial evidence on the whole record that the offending practice had been continued beyond 1938. It seems to be conceded that the pre-1939 practices, unless continued thereafter, afford insufficient justification for this paragraph of the Commission’s order.
The second paragraph of the order prohibits representations that pen points are 14 carat gold, as distinguished from gold plated base metal. The government concedes that objectional 'practice in this regard was discontinued pursuant to stipulation of the manufacturer more than three years before the present complaint was filed. The sole justification for its proscription now is the similarity of this long since discontinued practice to the allegedly* more recent practice involved in paragraph», one of the order. But it has already been, shown that there is no evidence that the-misrepresentation charged in paragraph one was continued after 1938.
I agree with the court that the third paragraph of the order should be sustained and enforced.
The fourth paragraph prohibits the use of the word “Waltham” on pen points. It is not disputed that the imprint “Waltham” was placed on certain pen points formerly manufactured by Hunt Pen Company for and pursuant to the specifications of a particular customer who was marketing fountain pens under that name which he had registered as a trademark. It is to be remembered that Hunt does not manufacture complete pens but rather manufactures pen points for sale to those who assemble and distribute fountain pens under whatever name. There is no indication that the Wal-tham imprint ever was used except at a particular customer’s specification or that it has been used at all since 1941. Indeed, the customer in question long since stipulated with the Commission that it would no longer market under the imprint “Waltham” and there is no suggestion that it or anyone else is likely to do so improperly. There is no indication that Hunt intended or suspected anything deceptive when it complied with the customer’s request to mark his pens with the name he had registered. The .Commission suggests only one basis for possible apprehension Hunt might at some time wrongfully imprint “Wal-tham” on pen points. The Commission points out that, although the company says that it does not and will not use this imprint, it at the same time claims that it acted innocently ten years ago when it filled a customer’s order for pen points with that imprint. On this basis alone the Commission reasons that if the supplier does not confess turpitude and willful wrong, although it believes, as the evidence indicates, that it was at worst the innocent instrumentality of another’s wrong, there is danger that it may do willful wrong in the. future. But, non sequitur.
*283I would give the Commission great leeway in deciding when there is danger that a deceptive act may be repeated. But there should be something in the record to show this danger when it is the sole basis of public interest in discontinued practices. When the proscribed practice has been discontinued years before complaint and the Commission’s apprehension of renewal seems clearly without foundation, I think a court should not accept the judgment of the Commission or enforce its order. Cf., Winston Co. v. F.T.C., 3 Cir. 1925, 3 F.2d 961, cer-tiorari denied, 269 U.S. 555, 46 S.Ct. 19, 70 L.Ed. 409; F.T.C. v. Civil Service Training Bureau, 6 Cir. 1935, 79 F.2d 113. But cf., Educators Ass’n v. F.T.C., 2 Cir. 1940, 108 F.2d 470, 473, rehearing denied, 2 Cir., 110 F.2d 72, modified, 2 Cir., 118 F.2d 562; F.T.C. v. A. McLean & Son, 7 Cir. 1936, 84 F.2d 910, 912-13, certiorari denied, 299 U.S. 590, 57 S.Ct. 117, 81 L.Ed. 435. We have such a case here.