American Airlines v. North American Airlines (351 U.S. 79)/Dissent Douglas

Mr. Justice DOUGLAS, with whom Mr. Justice REED concurs, dissenting.

The Court decides that a finding of 'substantial public confusion' resulting from respondent carrier's use of the name 'North American' constitutes a violation of § 411 of the Civil Aeronautics Act, 52 Stat. 1003, as amended, 66 Stat. 628, 49 U.S.C. § 491, 49 U.S.C.A. § 491.

If the Court held that the public confusion must be substantial enough to impair-or imminently threaten to impair-the efficiency of air service, I would agree. That construction would give practical content to the phrase 'substantial public confusion.' The Court, however, does not require a Board finding that the confusion has diminished the efficiency of air service. There is, indeed, no such finding by the Board in this case. There is only a naked finding of 'substantial public confusion' and that such confusion is 'likely to continue.' There is no finding that any flight was delayed because a passenger was confused; there is no finding that any passenger missed his plane because of checking in at the wrong ticket counter; there is no finding that a confused passenger boarded the wrong plane.

The Board conceded that its order requiring respondent to cease and desist from using the name 'North American' was 'a serious sanction which necessarily involves disturbance and loss to the carrier: * *  * 'The maintenance of high standards in dealing with the public is expected of common carriers, and the public has a right to be free of the inconveniences which flow from confusion between carriers engaging in the transportation of persons by air. The speed of air travel may well be diminished when passengers check in for flights with the wrong carrier, or attempt to retrieve baggage from the wrong carrier, or attempt to purchase transportation from the wrong carrier, or direct their inquiries to the wrong carrier.' Docket Nos. 5774 and 5928 (Nov. 4, 1953), 12-13 (mimeo). (Italics added.)

I would not permit the Board to find a violation of § 411 so easily. We should require a finding that the confusion has actually caused some impairment of air service or that at least there is an imminent threat of such impairment. Certainly the type of confusion found here 'may well' diminish the speed of air travel-if it grows to such major proportions that flights are delayed and passengers begin missing flights or boarding the wrong planes. But it is mere conjecture that that will ever happen as a result of respondent's use of the name 'North American.' The type and extent of public confusion found by the Board here would probably also be found if the Board conducted a similar inquiry into passenger confusion between Pan-American and American Airlines. It would also be surprising if the Board could not find similar confusion between Eastern and Northeast Airlines, Western and Northwest Airlines, or, if the Board had jurisdiction in the railroad industry, among Northern Pacific, Union Pacific, Western Pacific and Southern Pacific. As the dissenting member of the Board said:

'Since American Airlines, Inc., carries approximately 5 1/2 million passengers each year over its system, I am not impressed with the fact that witnesses in this case (principally those employed by American Airlines itself) have testified that some confusion has existed between the services offered by American, on the one hand, and North American on the other. On the contrary, I would be greatly surprised, (in view of the several million phone calls and other communications which American Airlines receives every year over and above those received from passengers which it actually carries) if there were not some demonstrable public confusion between American Airlines and the respondent in this case.' Id., at 1-2 (dissenting opinion).

The Court relies on the cases arising under § 5 of the Federal Trade Commission Act, 38 Stat. 719, as amended, 15 U.S.C. § 45, 15 U.S.C.A. § 45. Federal Trade Commission v. Algoma Lumber Co., 291 U.S. 67, 54 S.Ct. 315, 78 L.Ed. 655; Juvenile Shoe Co. v. Federal Trade Commission, 9 Cir., 289 F. 57; Pep Boys-Manny, Moe & Jack, Inc., v. Federal Trade Commission, 3 Cir., 122 F.2d 158. Those cases are quite different. In each the Commission made more than a bald finding of 'substantial public confusion.' It found, in the Algoma Lumber case, that a substantial number of purchasers had been misled into buying something other than what they thought they were buying. 291 U.S. at page 72, 54 S.Ct. at page 317. In the Juvenile Shoe case, the competitor took a name so similar ('Juvenile Shoe Corporation' and "Juvenile Shoe Company, Inc.") that confusion in the public mind was 'inevitable.' 289 F. at page 58. And the Commission made a finding that the use of the word 'Juvenile' caused confusion and led purchasers to believe that the goods of one company were the goods of the other company. Id., 289 F. at page 59. In the Pep Boys case, the court approved the following test: ' * *  * whether the natural and probable result of the use by petitioner of the name *  *  * makes the average purchaser unwittingly, under ordinary conditions purchase that which he did not intend to buy.' 122 F.2d at page 161.

There are no similar findings in the instant case. There is no finding here that a passenger bought a North American ticket and flew North American under the mistaken belief that he was flying American. There is no finding that any passenger missed a plane because of the confusion. If passengers mistakenly bought North American service, believing it to be American, a finding of unfair or deceptive practices or unfair methods of competition under § 411 would be justified. That is a type of public confusion quite different from the confusion found in this case reporting to the wrong ticket counter or attempting to retrieve baggage from the wrong carrier. By analogy to the § 5 cases, we have here a situation where a few prospective purchasers walked into the wrong store, but never made any purchases there.

I would affirm the judgment of the Court of Appeals.