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AMERICAN AIRLINES, INC., V. NORTH AMERICAN AIRLINES, INC., 351 U.S. 79 


NO. 410.  ARGUED MARCH 6-7, 1956.  - DECIDED APRIL 23, 1956.  - 97 U.S.
APP. D.C. 85, 228 F.2D 432, REVERSED AND REMANDED. 


IN A PROCEEDING UNDER SEC. 411 OF THE CIVIL AERONAUTICS ACT, THE CIVIL
AERONAUTICS BOARD FOUND THAT RESPONDENT'S USE OF THE NAME "NORTH
AMERICAN" IN THE AIR TRANSPORTATION INDUSTRY, IN WHICH IT COMPETED WITH
AMERICAN AIRLINES, HAD CAUSED "SUBSTANTIAL PUBLIC CONFUSION," BY
CAUSING PERSONS TO CHECK IN AT THE WRONG CARRIER, ATTEMPT TO PURCHASE
TRANSPORTATION FROM THE WRONG CARRIER, MEET FLIGHTS OF THE WRONG
CARRIER, AND OTHERWISE, THAT SUCH PUBLIC CONFUSION WAS "LIKELY TO
CONTINUE" AND WAS AN UNFAIR METHOD OF COMPETITION WITHIN THE MEANING OF
SEC. 411.  IT FURTHER FOUND THAT THE PUBLIC INTEREST REQUIRED
ELIMINATION OF THE USE OF THE NAME, AND IT ORDERED RESPONDENT TO CEASE
AND DESIST FROM ENGAGING IN AIR TRANSPORTATION UNDER THE NAME OF "NORTH
AMERICAN AIRLINES" OR ANY COMBINATION OF THE WORD "AMERICAN."  HELD: 

1.  THE BOARD APPLIED CRITERIA APPROPRIATE TO A DETERMINATION OF
WHETHER A PROCEEDING BY IT IN THIS CASE WOULD BE IN THE "INTEREST OF
THE PUBLIC," AS REQUIRED BY SEC. 411, AND IT HAD JURISDICTION TO
INQUIRE INTO THE METHODS OF COMPETITION PRESENTED HERE AND TO DETERMINE
WHETHER THEY CONSTITUTED A VIOLATION OF THE ACT.  PP. 80-85. 

2.  THE BOARD'S EVIDENTIARY FINDINGS CONCERNED CONFUSION OF THE TYPE
WHICH CAN SUPPORT A FINDING OF VIOLATION OF SEC. 411.  PP. 85-86. 

3.  HOWEVER, SINCE THIS COURT DOES NOT UNDERSTAND THE COURT OF
APPEALS TO HAVE DECIDED WHETHER THE BOARD'S FINDINGS WERE SUPPORTED BY
SUBSTANTIAL EVIDENCE ON THE RECORD AS A WHOLE, THE CASE IS REMANDED TO
THAT COURT FOR FURTHER PROCEEDINGS IN THE LIGHT OF THIS OPINION.  P.
86. 

AMERICAN AIRLINES, INC. V. NORTH AMERICAN AIRLINES, INC., ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

TWENTIETH CENTURY AIRLINES, INC., WAS ISSUED A LETTER OF REGISTRATION
AS A LARGE IRREGULAR AIR CARRIER BY THE CIVIL AERONAUTICS BOARD IN
1947.  FOR SOME REASON, BEGINNING IN 1951 IT CONDUCTED ITS BUSINESS
UNDER THE NAME OF NORTH AMERICAN AIRLINES.  ON MARCH 3, 1952, IT
AMENDED ITS ARTICLES OF INCORPORATION SO AS LEGALLY TO CHANGE ITS NAME
TO NORTH AMERICAN AIRLINES, INC. BY LETTER DATED MARCH 11, 1952, IT
REQUESTED THE C.A.B. TO REISSUE ITS LETTER OF REGISTRATION IN THE NEW
CORPORATE NAME.  THE BOARD TOOK NO ACTION ON THAT REQUEST, BUT RATHER,
IN AUGUST 1952, ADOPTED AN ECONOMIC REGULATION REQUIRING EVERY
IRREGULAR CARRIER AFTER NOVEMBER 15, 1952, TO DO BUSINESS IN THE NAME
IN WHICH ITS LETTER OF REGISTRATION WAS ISSUED.  14 CFR SEC. 291.28. 
THE BOARD EXPLAINED THAT UNDER THE REGULATION IT WOULD ALLOW CONTINUED
USE OF A DIFFERENT NAME TO WHICH GOOD WILL HAD BECOME ATTACHED, EXCEPT
WHERE USE OF SUCH NAME CONSTITUTES A VIOLATION OF SEC. 411 OF THE CIVIL
AERONAUTICS ACT, 52 STAT. 1003, AS AMENDED, 66 STAT. 628, 49 U.S.C.
SEC. 491, WHICH PROHIBITS UNFAIR OR DECEPTIVE COMMERCIAL PRACTICES AND
UNFAIR METHODS OF COMPETITION.  17 FED. REG. 7809. 

ON OCTOBER 6, 1952, RESPONDENT APPLIED FOR PERMISSION TO CONTINUE USE
OF ITS NAME, "NORTH AMERICAN AIRLINES."  PETITIONER, AMERICAN AIRLINES,
ON OCTOBER 17, 1952, FILED A MEMORANDUM WITH THE BOARD REQUESTING
DENIAL OF NORTH AMERICAN'S APPLICATION FOR THE REASONS, AMONG OTHERS,
THAT USE OF THE NAME "NORTH AMERICAN" INFRINGED UPON ITS LONG
ESTABLISHED TRADE NAME, "AMERICAN," AND CONSTITUTED AN UNFAIR METHOD OF
COMPETITION IN VIOLATION OF SEC. 411 OF THE ACT.  THE BOARD, AS
AUTHORIZED BY SEC. 411, ON ITS OWN MOTION INSTITUTED AN INVESTIGATION
AND HEARING INTO WHETHER THERE WAS A VIOLATION OF SEC. 411 BY NORTH
AMERICAN.  IT CONSOLIDATED WITH THAT PROCEEDING AN INVESTIGATION AND
HEARING INTO THE MATTER OF NORTH AMERICAN'S APPLICATION FOR CHANGE OF
NAME IN ITS LETTER OF REGISTRATION.  AMERICAN WAS GRANTED LEAVE TO
INTERVENE IN THE CONSOLIDATED PROCEEDING. 

AFTER EXTENSIVE HEARINGS, THE BOARD FOUND THAT RESPONDENT'S USE OF
THE NAME "NORTH AMERICAN" IN THE AIR TRANSPORTATION INDUSTRY, IN WHICH
IT COMPETED WITH AMERICAN, HAD CAUSED "SUBSTANTIAL PUBLIC CONFUSION,"
WHICH WAS "LIKELY TO CONTINUE" AND WHICH CONSTITUTED "AN UNFAIR OR
DECEPTIVE PRACTICE AND AN UNFAIR METHOD OF COMPETITION WITHIN THE
MEANING OF SECTION 411."  DOCKET NOS. 5774 AND 5928 (NOV. 4, 1953), 14
15 (MIMEO).  IT FOUND THAT THE PUBLIC INTEREST REQUIRED ELIMINATION OF
THE USE OF THE NAME, AND ACCORDINGLY IT DENIED THE APPLICATION OF NORTH
AMERICAN AND ORDERED IT TO "CEASE AND DESIST FROM ENGAGING IN AIR
TRANSPORTATION UNDER THE NAME 'NORTH AMERICAN AIRLINES, INC.,' 'NORTH
AMERICAN AIRLINES,' 'NORTH AMERICAN,' OR ANY COMBINATION OF THE WORD
'AMERICAN.'"  ID., AT 15-16.  ON PETITION FOR REVIEW BY NORTH AMERICAN,
THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA SET ASIDE THE BOARD'S
ORDER.  97 U.S. APP. D.C. 85, 228 F.2D 432.  AMERICAN, HAVING BEEN
ADMITTED AS A PARTY BELOW BY INTERVENTION, SOUGHT, AND WE GRANTED,
CERTIORARI.  350 U.S. 894. 

AS WE UNDERSTAND ITS OPINION, THE COURT OF APPEALS SET ASIDE THE
ORDER BECAUSE THE PUBLIC INTEREST IN THIS PROCEEDING WAS INADEQUATE TO
JUSTIFY EXERCISE OF THE BOARD'S JURISDICTION UNDER SEC. 411.  ALTHOUGH
THE COURT WAS CRITICAL OF THE FINDING OF "SUBSTANTIAL PUBLIC
CONFUSION," IT DID NOT, ON ITS DISPOSITION OF THE CASE, EXPRESSLY
DISTURB THAT OR ANY OTHER OF THE BOARD'S FINDINGS.  FOR THE PURPOSES OF
REVIEW HERE, WE WILL ACCEPT THE FINDINGS, AND THERE IS NO CAUSE FOR
THIS COURT TO REVIEW THE EVIDENCE.  UNIVERSAL CAMERA CORP. V. LABOR
BOARD, 340 U.S. 474, HAS NO APPLICATION IN THE PRESENT POSTURE OF THE
CASE BEFORE US.  THE QUESTIONS THEN PRESENTED ARE WHETHER CONFUSION
BETWEEN THE PARTIES' TRADE NAMES JUSTIFIED A PROCEEDING BY THE BOARD TO
PROTECT THE PUBLIC AND WHETHER THE KIND OF CONFUSION FOUND BY THE BOARD
COULD SUPPORT A CONCLUSION OF A VIOLATION OF THE STATUTE BY
RESPONDENT. 

THIS IS A CASE OF FIRST IMPRESSION UNDER SEC. 411.  THAT SECTION
PROVIDES THAT: 

"THE BOARD MAY, UPON ITS OWN INITIATIVE OR UPON COMPLAINT  ...  IF IT
CONSIDERS THAT SUCH ACTION BY IT WOULD BE IN THE INTEREST OF THE
PUBLIC, INVESTIGATE AND DETERMINE WHETHER ANY AIR CARRIER  ...  HAS
BEEN OR IS ENGAGED IN UNFAIR OR DECEPTIVE PRACTICES OR UNFAIR METHODS
OF COMPETITION IN AIR TRANSPORTATION OR THE SALE THEREOF." 

IF THE BOARD FINDS THAT THE CARRIER IS SO ENGAGED, "IT SHALL ORDER
SUCH AIR CARRIER  ... TO CEASE AND DESIST FROM SUCH PRACTICES OR
METHODS OF COMPETITION."  SECTION 411 WAS MODELED CLOSELY AFTER SEC. 5
OF THE FEDERAL TRADE COMMISSION ACT,* WHICH SIMILARLY PROHIBITS "UNFAIR
METHODS OF COMPETITION IN COMMERCE, AND UNFAIR OR DECEPTIVE ACTS OR
PRACTICES" AND PROVIDES FOR ISSUANCE OF A COMPLAINT "IF IT SHALL APPEAR
TO THE COMMISSION THAT A PROCEEDING BY IT  ...  WOULD BE TO THE
INTEREST OF THE PUBLIC."  38 STAT. 719, AS AMENDED, 15 U.S.C. SEC. 45. 
WE MAY PROFITABLY LOOK TO JUDICIAL INTERPRETATION OF SEC. 5 AS AN AID
IN THE RESOLUTION OF THE QUESTIONS RAISED HERE UNDER SEC. 411. 

*SEE HEARINGS BEFORE A SUBCOMMITTEE OF THE SENATE COMMITTEE ON
INTERSTATE COMMERCE ON S. 3659, 75TH CONG., 3D SESS. 5; 83 CONG. REC.
6726; HEARINGS BEFORE A SUBCOMMITTEE OF THE SENATE COMMITTEE ON
INTERSTATE COMMERCE ON S. 2 AND S. 1760, 75TH CONG., 1ST SESS., PT. 1,
74. 

IT SHOULD BE NOTED AT THE OUTSET THAT A FINDING AS TO THE "INTEREST
OF THE PUBLIC" UNDER BOTH SEC. 411 AND SEC. 5 IS NOT A PREREQUISITE TO
THE ISSUANCE OF A CEASE AND DESIST ORDER AS SUCH.  RATHER,
CONSIDERATION OF THE PUBLIC INTEREST IS MADE A CONDITION UPON THE
ASSUMPTION OF JURISDICTION BY THE AGENCY TO INVESTIGATE TRADE PRACTICES
AND METHODS OF COMPETITION AND DETERMINE WHETHER OR NOT THEY ARE
UNFAIR.  THUS, THIS COURT HAS HELD THAT, UNDER SEC. 5, THE FEDERAL
TRADE COMMISSION MAY NOT EMPLOY ITS POWERS TO VINDICATE PRIVATE RIGHTS
AND THAT WHETHER OR NOT THE FACTS, ON COMPLAINT OR AS DEVELOPED, SHOW
THE PUBLIC INTEREST TO BE SUFFICIENTLY "SPECIFIC AND SUBSTANTIAL" TO
AUTHORIZE A PROCEEDING BY THE COMMISSION IS A QUESTION SUBJECT TO
JUDICIAL REVIEW.  FEDERAL TRADE COMM'N V. KLESNER, 280 U.S. 19.  SEE
ALSO FEDERAL TRADE COMM'N V. KEPPEL & BRO., INC., 291 U.S. 304; FEDERAL
TRADE COMM'N V. ROYAL MILLING CO., 288 U.S. 212. 

IN THE KLESNER CASE, TWO DISTRICT OF COLUMBIA RETAILERS, WITH A LONG
HISTORY OF ACRIMONIOUS PERSONAL AND BUSINESS RELATIONS, WERE BOTH
OPERATING STORES CALLED THE "SHADE SHOP."  THIS COURT HELD THAT THE
PUBLIC INTEREST MERELY IN RESOLVING THEIR PRIVATE UNFAIR COMPETITION
DISPUTE WOULD NOT JUSTIFY THE COMMISSION IN ISSUING A COMPLAINT.  THE
COURTS OF LAW ARE OPEN TO COMPETITORS FOR THE SETTLEMENT OF THEIR
PRIVATE LEGAL RIGHTS, ONE AGAINST THE OTHER.  THE BOARD, UNDER A
MANDATE FROM CONGRESS, IS CHARGED WITH THE PROTECTION OF THE PUBLIC
INTEREST AS AFFECTED BY PRACTICES OF CARRIERS IN THE FIELD OF AIR
TRANSPORTATION.  IN EXERCISING OUR FUNCTION OF REVIEW OF THE BOARD'S
JURISDICTION TO PROTECT THE PUBLIC INTEREST BY A PROCEEDING WHICH MAY
BE GENERATED FROM FACTS ALSO GIVING RISE TO A PRIVATE DISPUTE, WE MUST
TAKE ACCOUNT OF THE SIGNIFICANT DIFFERENCES BETWEEN SEC. 5 AND SEC.
411.  SECTION 5 IS CONCERNED WITH PURELY PRIVATE BUSINESS ENTERPRISES
WHICH COVER THE FULL SPECTRUM OF ECONOMIC ACTIVITY.  ON THE OTHER HAND,
THE AIR CARRIERS HERE CONDUCT THEIR BUSINESS UNDER A REGULATED SYSTEM
OF LIMITED COMPETITION.  THE BUSINESS SO CONDUCTED IS OF ESPECIAL AND
ESSENTIAL CONCERN TO THE PUBLIC, AS IS TRUE OF ALL COMMON CARRIERS AND
PUBLIC UTILITIES.  FINALLY, CONGRESS HAS COMMITTED THE REGULATION OF
THIS INDUSTRY TO AN ADMINISTRATIVE AGENCY OF SPECIAL COMPETENCE THAT
DEALS ONLY WITH THE PROBLEMS OF THE INDUSTRY. 

THE PRACTICES OF THE COMPETITORS HERE CLASHED IN A FIELD WHERE
CONGRESS WAS SPECIFICALLY CONCERNED TO PROTECT THE PUBLIC INTEREST. 
DEMONSTRATED CONFUSION OF THE PUBLIC AS TO THE ORIGIN OF MAJOR AIR
TRANSPORTATION SERVICES MAY BE OF OBVIOUS NATIONAL PUBLIC CONCERN.  THE
CRITERIA WHICH THE BOARD EMPLOYED TO DETERMINE WHETHER THE CONFUSION
HERE CREATED A PROBLEM OF CONCERN TO THE PUBLIC ARE CONTAINED IN THE
FOLLOWING QUOTATION FROM ITS REPORT: 

"  ...  THE RECORD IS CONVINCING THAT THE PUBLIC INTEREST REQUIRES
THIS ACTION IN ORDER TO PREVENT FURTHER PUBLIC CONFUSION BETWEEN
RESPONDENT AND INTERVENOR DUE TO SIMILARITY OF NAMES.  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.  FRIENDS, RELATIVES OR BUSINESS
ASSOCIATES PLANNING TO MEET PASSENGERS OR SEEKING INFORMATION ON
DELAYED ARRIVALS ARE SUBJECT TO ANNOYANCE OR WORSE WHEN CONFUSED AS TO
THE CARRIER INVOLVED.  THE PROPER HANDLING OF COMPLAINTS FROM MEMBERS
OF THE PUBLIC IS IMPEDED BY CONFUSION AS TO THE CARRIER TO WHOM THE
COMPLAINT SHOULD BE PRESENTED.  THE TRANSPORTATION ITSELF MAY DIFFER
FROM WHAT THE CONFUSED PURCHASER HAD ANTICIPATED (E.G., IN TERMS OF
EQUIPMENT), EVEN THOUGH THE TIME AND PLACE OF ARRIVAL MAY BE ABOUT THE
SAME.  IT IS OBVIOUS THAT PUBLIC CONFUSION BETWEEN AIR CARRIERS
OPERATING BETWEEN THE SAME CITIES IS ADVERSE TO THE PUBLIC INTEREST
...  ."  DOCKET NOS. 5774 AND 5928 (NOV. 4, 1953), 12-13 (MIMEO). 

UNDER SEC. 411 IT IS THE BOARD THAT SPEAKS IN THE PUBLIC INTEREST. 
WE DO NOT SIT TO DETERMINE INDEPENDENTLY WHAT IS THE PUBLIC INTEREST IN
MATTERS OF THIS KIND, COMMITTED AS THEY ARE TO THE JUDGMENT OF THE
BOARD.  WE DECIDE ONLY WHETHER, IN DETERMINING WHAT IS THE PUBLIC
INTEREST, THE BOARD HAS STAYED WITHIN ITS JURISDICTION AND APPLIED
CRITERIA APPROPRIATE TO THAT DETERMINATION.  THE BOARD HAS DONE THAT IN
THE INSTANT CASE.  CONSIDERATIONS OF THE HIGH STANDARDS REQUIRED OF
COMMON CARRIERS IN DEALING WITH THE PUBLIC, CONVENIENCE OF THE
TRAVELING PUBLIC, SPEED AND EFFICIENCY IN AIR TRANSPORT, AND PROTECTION
OF RELIANCE ON A CARRIER'S EQUIPMENT ARE ALL CRITERIA WHICH THE BOARD
IN ITS JUDGMENT MAY PROPERLY EMPLOY TO DETERMINE WHETHER THE PUBLIC
INTEREST JUSTIFIES USE OF ITS POWERS UNDER SEC. 411. 

IT IS ARGUED THAT RESPONDENT'S USE OF THE NAME "NORTH AMERICAN"
CANNOT AMOUNT TO AN UNFAIR OR DECEPTIVE PRACTICE OR AN UNFAIR METHOD OF
COMPETITION AUTHORIZING THE BOARD'S ORDER WITHIN SEC. 411.   "UNFAIR OR
DECEPTIVE PRACTICES OR UNFAIR METHODS OF COMPETITION," AS USED IN SEC.
411, ARE BROADER CONCEPTS THAN THE COMMON-LAW IDEA OF UNFAIR
COMPETITION.  SEE FEDERAL TRADE COMM'N V. KEPPEL & BRO., INC., SUPRA;
FEDERAL TRADE COMM'N V. RALADAM CO., 283 U.S. 643, 648.  THE SECTION IS
CONCERNED NOT WITH PUNISHMENT OF WRONGDOING OR PROTECTION OF INJURED
COMPETITORS, BUT RATHER WITH PROTECTION OF THE PUBLIC INTEREST.  SEE
FEDERAL TRADE COMM'N V. KLESNER, SUPRA, AT 27-28.  THE COURTS HAVE
HELD, IN CONSTRUING SEC. 5 OF THE TRADE COMMISSION ACT, THAT THE USE OF
A TRADE NAME THAT IS SIMILAR TO THAT OF A COMPETITOR, WHICH HAS THE
CAPACITY TO CONFUSE OR DECEIVE THE PUBLIC, MAY BE PROHIBITED BY THE
COMMISSION.  FEDERAL TRADE COMM'N V. ALGOMA LUMBER CO., 291 U.S. 67;
JUVENILE SHOE CO. V. FEDERAL TRADE COMM'N, 289 F. 57.  AND SEE PEP BOYS
- MANNY, MOE & JACK, INC. V. FEDERAL TRADE COMM'N, 122 F.2D 158, WHERE
THE CONFUSING NAME WAS NOT THAT OF ANY COMPETITOR.  THE BOARD FOUND
THAT RESPONDENT KNOWINGLY ADOPTED A TRADE NAME THAT MIGHT WELL CAUSE
CONFUSION.  BUT IT MADE NO FINDINGS THAT THE USE OF THE NAME WAS
INTENTIONALLY DECEPTIVE OR FRAUDULENT OR THAT THE COMPETITOR, AMERICAN
AIRLINES, WAS INJURED THEREBY.  SUCH FINDINGS ARE NOT REQUIRED OF THE
TRADE COMMISSION UNDER SEC. 5, AND THERE IS NO REASON TO REQUIRE THEM
OF THE CIVIL AERONAUTICS BOARD UNDER SEC. 411.  FEDERAL TRADE COMM'N V.
ALGOMA LUMBER CO., SUPRA, AT 81; EUGENE DIETZGEN CO. V. FEDERAL TRADE
COMM'N, 142 F.2D 321, 327; D.D.D. CORP. V. FEDERAL TRADE COMM'N, 125
F.2D 679, 682; GIMBEL BROS., INC. V. FEDERAL TRADE COMM'N, 116 F.2D
578, 579; FEDERAL TRADE COMM'N V. BALME, 23 F.2D 615, 621.  SEE ALSO S.
REP. NO. 221, 75TH CONG., 1ST SESS. 2. 

THE BOARD HAD JURISDICTION TO INQUIRE INTO THE METHODS OF COMPETITION
PRESENTED HERE, AND ITS EVIDENTIARY FINDINGS CONCERNED CONFUSION OF THE
TYPE WHICH CAN SUPPORT A FINDING OF VIOLATION OF SEC. 411.  THE
JUDGMENT OF THE COURT OF APPEALS MUST THEREFORE BE REVERSED.  HOWEVER,
SINCE WE DO NOT UNDERSTAND THE COURT TO HAVE DECIDED WHETHER THE
BOARD'S FINDINGS WERE SUPPORTED BY SUBSTANTIAL EVIDENCE ON THE RECORD
AS A WHOLE, THE CASE IS REMANDED TO THE COURT OF APPEALS FOR FURTHER
PROCEEDINGS IN THE LIGHT OF THIS OPINION.  REVERSED AND REMANDED. 
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 SEC.  411 OF THE CIVIL AERONAUTICS ACT, 52
STAT. 1003, AS AMENDED, 66 STAT. 628, 49 U.S.C.  SEC. 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). 

I WOULD NOT PERMIT THE BOARD TO FIND A VIOLATION OF SEC. 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 SEC. 5 OF THE FEDERAL
TRADE COMMISSION ACT, 38 STAT. 719, AS AMENDED, 15 U.S.C. SEC. 45. 
FEDERAL TRADE COMM'N V. ALGOMA LUMBER CO., 291 U.S. 67; JUVENILE SHOE
CO. V. FEDERAL TRADE COMM'N, 289 F. 57; PEP BOYS V. FEDERAL TRADE
COMM'N, 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 72.  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 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., AT 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 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 SEC. 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 SEC. 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.