FTC & Guides for the Jewelry, Precious Metals, and Pewter Industries

All jewelry sellers, whether it be fashion or fine, antique, vintage or new should know the below guidelines. Advertising jewelry, precious metals, gemstones or diamonds inapporpriately is illegal.

23.0 Scope and application.

(a) These guides apply to jewelry industry products, which include, but are not limited to, the following: gemstones and their laboratory-created and imitation substitutes; natural and cultured pearls and their imitations; and metallic watch bands not permanently attached to watches.1  These guides also apply to articles, including optical frames, pens and pencils, flatware, and hollowware, fabricated from precious metals (gold, silver and platinum group metals), precious metal alloys, and their imitations. These guides also apply to all articles made from pewter. For the purposes of these guides, all articles covered by these guides are defined as "industry products."

(b) These guides apply to persons, partnerships, or corporations, at every level of the trade (including but not limited to manufacturers, suppliers, and retailers) engaged in the business of offering for sale, selling, or distributing industry products.

Note to paragraph (b):  To prevent consumer deception, persons, partnerships, or corporations in the business of appraising, identifying, or grading industry products should utilize the terminology and standards set forth in the guides.

(c) These guides apply to claims and representations about industry products included in labeling, advertising, promotional materials, and all other forms of marketing, whether asserted directly or by implication, through words, symbols, emblems, logos, illustrations, depictions, product brand names, or through any other means.

23.1 Deception (general).

It is unfair or deceptive to misrepresent the type, kind, grade, quality, quantity, metallic content, size, weight, cut, color, character, treatment, substance, durability, serviceability, origin, price, value, preparation, production, manufacture, distribution, or any other material aspect of an industry product.

Note 1 to § 23.1:  If, in the sale or offering for sale of an industry product, any representation is made as to the grade assigned the product, the identity of the grading system used should be disclosed.

Note 2 to § 23.1:  To prevent deception, any qualifications or disclosures, such as those described in the guides, should be sufficiently clear and prominent. Clarity of language, relative type size and proximity to the claim being qualified, and an absence of contrary claims that could undercut effectiveness, will maximize the likelihood that the qualifications and disclosures are appropriately clear and prominent.

23.2 Misleading illustrations."

It is unfair or deceptive to use, as part of any advertisement, packaging material, label, or other sales promotion matter, any visual representation, picture, televised or computer image, illustration, diagram, or other depiction which, either alone or in conjunction with any accompanying words or phrases, misrepresents the type, kind, grade, quality, quantity, metallic content, size, weight, cut, color, character, treatment, substance, durability, serviceability, origin, preparation, production, manufacture, distribution, or any other material aspect of an industry product.

Note to § 23.2:  An illustration or depiction of a diamond or other gemstone that portrays it in greater than its actual size may mislead consumers, unless a disclosure is made about the item's true size.

23.3 Misuse of the terms "hand-made," "hand-polished," etc.

(a) It is unfair or deceptive to represent, directly or by implication, that any industry product is hand-made or hand-wrought unless the entire shaping and forming of such product from raw materials and its finishing and decoration were accomplished by hand labor and manually-controlled methods which permit the maker to control and vary the construction, shape, design, and finish of each part of each individual product.

Note to paragraph (a):  As used herein, "raw materials" include bulk sheet, strip, wire, and similar items that have not been cut, shaped, or formed into jewelry parts, semi-finished parts, or blanks.

(b) It is unfair or deceptive to represent, directly or by implication, that any industry product is hand-forged, hand-engraved, hand-finished, or hand-polished, or has been otherwise hand-processed, unless the operation described was accomplished by hand labor and manually-controlled methods which permit the maker to control and vary the type, amount, and effect of such operation on each part of each individual product.

23.4 Misrepresentation as to gold content.

(a) It is unfair or deceptive to misrepresent the presence of gold or gold alloy in an industry product, or the quantity or karat fineness of gold or gold alloy contained in the product, or the karat fineness, thickness, weight ratio, or manner of application of any gold or gold alloy plating, covering, or coating on any surface of an industry product or part thereof.

(b) The following are examples of markings or descriptions that may be misleading:

(1) Use of the word "Gold" or any abbreviation, without qualification, to describe all or part of an industry product, which is not composed throughout of fine (24 karat) gold.

(2) Use of the word "Gold" or any abbreviation to describe all or part of an industry product composed throughout of an alloy of gold, unless a correct designation of the karat fineness of the alloy immediately precedes the word "Gold" or its abbreviation, and such fineness designation is of at least equal conspicuousness.

(3) Use of the word "Gold" or any abbreviation to describe all or part of an industry product that is not composed throughout of gold or a gold alloy, but is surface-plated or coated with gold alloy, unless the word "Gold" or its abbreviation is adequately qualified to indicate that the product or part is only surface-plated.

(4) Use of the term "Gold Plate," "Gold Plated," or any abbreviation to describe all or part of an industry product unless such product or part contains a surface-plating of gold alloy, applied by any process, which is of such thickness and extent of surface coverage that reasonable durability is assured.

(5) Use of the terms "Gold Filled," "Rolled Gold Plate," "Rolled Gold Plated," "Gold Overlay," or any abbreviation to describe all or part of an industry product unless such product or part contains a surface-plating of gold alloy applied by a mechanical process and of such thickness and extent of surface coverage that reasonable durability is assured, and unless the term is immediately preceded by a correct designation of the karat fineness of the alloy that is of at least equal conspicuousness as the term used.

(6) Use of the terms "Gold Plate," "Gold Plated," "Gold Filled," "Rolled Gold Plate," "Rolled Gold Plated," "Gold Overlay,'' or any abbreviation to describe a product in which the layer of gold plating has been covered with a base metal (such as nickel), which is covered with a thin wash of gold, unless there is a disclosure that the primary gold coating is covered with a base metal, which is gold washed.

(7) Use of the term "Gold Electroplate," "Gold Electroplated," or any abbreviation to describe all or part of an industry product unless such product or part is electroplated with gold or a gold alloy and such electroplating is of such karat fineness, thickness, and extent of surface coverage that reasonable durability is assured.

(8) Use of any name, terminology, or other term to misrepresent that an industry product is equal or superior to, or different than, a known and established type of industry product with reference to its gold content or method of manufacture.

(9) Use of the word "Gold" or any abbreviation, or of a quality mark implying gold content (e.g., 9 karat), to describe all or part of an industry product that is composed throughout of an alloy of gold of less than 10 karat fineness.

Note to paragraph (b) § 23.4:  The provisions regarding the use of the word "Gold," or any abbreviation, as described above, are applicable to "Duragold," "Diragold," "Noblegold," "Goldine," "Layered Gold," or any words or terms of similar meaning.

(c) The following are examples of markings and descriptions that are consistent with the principles described above:

(1) An industry product or part thereof, composed throughout of an alloy of gold of not less than 10 karat fineness, may be marked and described as "Gold" when such word "Gold," wherever appearing, is immediately preceded by a correct designation of the karat fineness of the alloy, and such karat designation is of equal conspicuousness as the word "Gold" (for example, "14 Karat Gold," "14 K. Gold," or "14 Kt. Gold"). Such product may also be marked and described by a designation of the karat fineness of the gold alloy unaccompanied by the word "Gold" (for example, "14 Karat," "14 Kt.," or "14 K.").

Note to paragraph (c)(1):  Use of the term "Gold'' or any abbreviation to describe all or part of a product that is composed throughout of gold alloy, but contains a hollow center or interior, may mislead consumers, unless the fact that the product contains a hollow center is disclosed in immediate proximity to the term "Gold'' or its abbreviation (for example, "14 Karat Gold-Hollow Center," or "14 K. Gold Tubing," when of a gold alloy tubing of such karat fineness). Such products should not be marked or described as "solid" or as being solidly of gold or of a gold alloy. For example, when the composition of such a product is 14 karat gold alloy, it should not be described or marked as either "14 Kt. Solid Gold" or as "Solid 14 Kt. Gold."

(2) An industry product or part thereof, on which there has been affixed on all significant surfaces, by any process, a coating, electroplating, or deposition by any means, of gold or gold alloy of not less than 10 karat fineness that is of substantial thickness,3 and the minimum thickness throughout of which is equivalent to one-half micron (or approximately 20 millionths of an inch) of fine gold,4 may be marked or described as "Gold Plate" or "Gold Plated," or abbreviated, as, for example, G.P. The exact thickness of the plate may be marked on the item, if it is immediately followed by a designation of the karat fineness of the plating which is of equal conspicuousness as the term used (as, for example, "2 microns 12 K. gold plate" or "2µ 12 K. G.P." for an item plated with 2 microns of 12 karat gold.)

Note paragraph (c)(2) to paragraph (b):  If an industry product has a thicker coating or electroplating of gold or gold alloy on some areas than others, the minimum thickness of the plate should be marked.

(3) An industry product or part thereof on which there has been affixed on all significant surfaces by soldering, brazing, welding, or other mechanical means, a plating of gold alloy of not less than 10 karat fineness and of substantial thickness5 may be marked or described as "Gold Filled," "Gold Overlay," "Rolled Gold Plate"or an adequate abbreviation, when such plating constitutes at least 1/20th of the weight of the metal in the entire article and when the term is immediately preceded by a designation of the karat fineness of the plating which is of equal conspicuousness as the term used (for example, "14 Karat Gold Filled," "14 Kt. Gold Filled," "14 Kt. G.F.," "14 Kt. Gold Overlay," or "14K. R.G.P."). When conforming to all such requirements except the specified minimum of 1/20th of the weight of the metal in the entire article, the terms "Gold Overlay" and "Rolled Gold Plate" may be used when the karat fineness designation is immediately preceded by a fraction accurately disclosing the portion of the weight of the metal in the entire article accounted for by the plating, and when such fraction is of equal conspicuousness as the term used (for example, "1/40th 12 Kt. Rolled Gold Plate" or "1/40 12 Kt. R.G.P.").
(4) An industry product or part thereof, on which there has been affixed on all significant surfaces by an electrolytic process, an electroplating of gold, or of a gold alloy of not less than 10 karat fineness, which has a minimum thickness throughout equivalent to .175 microns (approximately 7/1,000,000ths of an inch) of fine gold, may be marked or described as "Gold Electroplate" or "Gold Electroplated," or abbreviated, as, for example, "G.E.P." When the electroplating meets the minimum fineness but not the minimum thickness specified above, the marking or description may be "Gold Flashed" or "Gold Washed." When the electroplating is of the minimum fineness specified above and of a minimum thickness throughout equivalent to two and one half (2 1/2) microns (or approximately 100/1,000,000ths of an inch) of fine gold, the marking or description may be "Heavy Gold Electroplate" or "Heavy Gold Electroplated." When electroplatings qualify for the term "Gold Electroplate" (or "Gold Electroplated"), or the term "Heavy Gold Electroplate" (or "Heavy Gold Electroplated"), and have been applied by use of a particular kind of electrolytic process, the marking may be accompanied by identification of the process used, as for example, "Gold Electroplated (X Process)" or "Heavy Gold Electroplated (Y Process)."

(d) The provisions of this section relating to markings and descriptions of industry products and parts thereof are subject to the applicable tolerances of the National Stamping Act or any amendment thereof.6

Note 4 to paragraph (d):  Exemptions recognized in the assay of karat gold industry products and in the assay of gold filled, gold overlay, and rolled gold plate industry products, and not to be considered in any assay for quality, are listed in the appendix.

23.5 Misuse of the word "vermeil."

(a) It is unfair or deceptive to represent, directly or by implication, that an industry product is "vermeil" if such mark or description misrepresents the product's true composition.

(b) An industry product may be described or marked as "vermeil" if it consists of a base of sterling silver coated or plated on all significant surfaces with gold, or gold alloy of not less than 10 karat fineness, that is of substantial thickness7 and a minimum thickness throughout equivalent to two and one half (2 1/2) microns (or approximately 100/1,000,000ths of an inch) of fine gold.

Note 1 to § 23.5:  It is unfair or deceptive to use the term "vermeil" to describe a product in which the sterling silver has been covered with a base metal (such as nickel) plated with gold unless there is a disclosure that the sterling silver is covered with a base metal that is plated with gold.

Note 2 to § 23.5:  Exemptions recognized in the assay of gold filled, gold overlay, and rolled gold plate industry products are listed in the appendix.

23.6 Misrepresentation as to silver content.

(a) It is unfair or deceptive to misrepresent that an industry product contains silver, or to misrepresent an industry product as having a silver content, plating, electroplating, or coating.

(b) It is unfair or deceptive to mark, describe, or otherwise represent all or part of an industry product as "silver," "solid silver," "Sterling Silver," "Sterling," or the abbreviation "Ster." unless it is at least 925/1,000ths pure silver.

(c) It is unfair or deceptive to mark, describe, or otherwise represent all or part of an industry product as "coin" or "coin silver" unless it is at least 900/1,000ths pure silver.

(d) It is unfair or deceptive to mark, describe, or otherwise represent all or part of an industry product as being plated or coated with silver unless all significant surfaces of the product or part contain a plating or coating of silver that is of substantial thickness.8

(e) The provisions of this section relating to markings and descriptions of industry products and parts thereof are subject to the applicable tolerances of the National Stamping Act or any amendment thereof.9

Note 1 to § 23.6:  The National Stamping Act provides that silverplated articles shall not "be stamped, branded, engraved or imprinted with the word ‘sterling’ or the word ‘coin,’ either alone or in conjunction with other words or marks." 15 U.S.C. 297(a).

Note 2 to § 23.6: Exemptions recognized in the assay of silver industry products are listed in the appendix.

23.7 Misuse of the words "platinum," "iridium," "palladium," "ruthenium," "rhodium," and "osmium."

(a) It is unfair or deceptive to use the words "platinum," "iridium," "palladium," "ruthenium," "rhodium," and "osmium," or any abbreviation to mark or describe all or part of an industry product if such marking or description misrepresents the product’s true composition. The Platinum Group Metals (PGM) are Platinum, Iridium, Palladium, Ruthenium, Rhodium, and Osmium.

(b) The following are examples of markings or descriptions that may be misleading:

(1) Use of the word "Platinum" or any abbreviation, without qualification, to describe all or part of an industry product that is not composed throughout of 950 parts per thousand pure Platinum.

(2) Use of the word "Platinum" or any abbreviation accompanied by a number indicating the parts per thousand of pure Platinum contained in the product without mention of the number of parts per thousand of other PGM contained in the product, to describe all or part of an industry product that is not composed throughout of at least 850 parts per thousand pure platinum, for example,"600Plat."

(3) Use of the word "Platinum" or any abbreviation thereof, to mark or describe any product that is not composed throughout of at least 500 parts per thousand pure Platinum.

(c) The following are examples of markings and descriptions that are not considered unfair or deceptive:

(1) The following abbreviations for each of the PGM may be used for quality marks on articles: "Plat." or "Pt." for Platinum; "Irid." or "Ir." for Iridium; "Pall." or "Pd." for Palladium; "Ruth." or "Ru." for Ruthenium; "Rhod." or "Rh." for Rhodium; and "Osmi." or "Os." for Osmium.

(2) An industry product consisting of at least 950 parts per thousand pure Platinum may be marked or described as "Platinum."

(3) An industry product consisting of 850 parts per thousand pure Platinum, 900 parts per thousand pure Platinum, or 950 parts per thousand pure Platinum may be marked "Platinum," provided that the Platinum marking is preceded by a number indicating the amount in parts per thousand of pure Platinum (for industry products consisting of 950 parts per thousand pure Platinum, the marking described in § 23.7(b)(2) above is also appropriate). Thus, the following markings may be used: "950Pt.," "950Plat.," "900Pt.," "900Plat.," "850Pt.," or "850Plat."

(4) An industry product consisting of at least 950 parts per thousand PGM, and of at least 500 parts per thousand pure Platinum, may be marked "Platinum," provided that the mark of each PGM constituent is preceded by a number indicating the amount in parts per thousand of each PGM, as for example, "600Pt.350Ir.," "600Plat.350Irid.," or "550Pt.350Pd.50Ir.," "550Plat.350Pall.50Irid."

Note to § 23.7: Exemptions recognized in the assay of platinum industry products are listed in the Appendix.

23.8 Misrepresentation as to content of pewter.

(a) It is unfair or deceptive to mark, describe, or otherwise represent all or part of an industry product as "Pewter" or any abbreviation if such mark or description misrepresents the product's true composition.

(b) An industry product or part thereof may be described or marked as "Pewter" or any abbreviation if it consists of at least 900 parts per 1000 Grade A Tin, with the remainder composed of metals appropriate for use in pewter.

23.9 Additional guidance for the use of quality marks.

As used in these guides, the term quality mark means any letter, figure, numeral, symbol, sign, word, or term, or any combination thereof, that has been stamped, embossed, inscribed, or otherwise placed on any industry product and which indicates or suggests that any such product is composed throughout of any precious metal or any precious metal alloy or has a surface or surfaces on which there has been plated or deposited any precious metal or precious metal alloy. Included are the words "gold," "karat," "carat," "silver," "sterling," "vermeil," "platinum," "iridium," "palladium," "ruthenium," "rhodium," or "osmium," or any abbreviations thereof, whether used alone or in conjunction with the words "filled," "plated," "overlay," or "electroplated," or any abbreviations thereof. Quality markings include those in which the words or terms "gold," "karat," "silver," "vermeil," "platinum" (or platinum group metals), or their abbreviations are included, either separately or as suffixes, prefixes, or syllables.

(a) Deception as to applicability of marks.

(1) If a quality mark on an industry product is applicable to only part of the product, the part of the product to which it is applicable (or inapplicable) should be disclosed when, absent such disclosure, the location of the mark misrepresents the product or part's true composition.

(2) If a quality mark is applicable to only part of an industry product, but not another part which is of similar surface appearance, each quality mark should be closely accompanied by an identification of the part or parts to which the mark is applicable.

(b) Deception by reason of difference in the size of letters or words in a marking or markings. It is unfair or deceptive to place a quality mark on a product in which the words or letters appear in greater size than other words or letters of the mark, or when different markings placed on the product have different applications and are in different sizes, when the net impression of any such marking would be misleading as to the metallic composition of all or part of the product. (An example of improper marking would be the marking of a gold electroplated product with the word "electroplate" in small type and the word "gold" in larger type, with the result that purchasers and prospective purchasers of the product might only observe the word "gold.")

Note 1 to § 23.9:  Legibility of markings. If a quality mark is engraved or stamped on an industry product, or is printed on a tag or label attached to the product, the quality mark should be of sufficient size type as to be legible to persons of normal vision, should be so placed as likely to be observed by purchasers, and should be so attached as to remain thereon until consumer purchase.

Note 2 to § 23.9:  Disclosure of identity of manufacturers, processors, or distributors. The National Stamping Act provides that any person, firm, corporation, or association, being a manufacturer or dealer subject to section 294 of the Act, who applies or causes to be applied a quality mark, or imports any article bearing a quality mark "which indicates or purports to indicate that such article is made in whole or in part of gold or silver or of an alloy of either metal" shall apply to the article the trademark or name of such person. 15 U.S.C. 297.

23.10 Misuse of "corrosion proof," "noncorrosive," "corrosion resistant," "rust proof," "rust resistant," etc.

(a) It is unfair or deceptive to:

(1) Use the terms "corrosion proof," "noncorrosive," "rust proof," or any other term of similar meaning to describe an industry product unless all parts of the product will be immune from rust and other forms of corrosion during the life expectancy of the product; or

(2) Use the terms "corrosion resistant," "rust resistant," or any other term of similar meaning to describe an industry product unless all parts of the product are of such composition as to not be subject to material damage by corrosion or rust during the major portion of the life expectancy of the product under normal conditions of use.

(b) Among the metals that may be considered as corrosion (and rust) resistant are: Pure nickel; Gold alloys of not less than 10 Kt. fineness; and Austenitic stainless steels.

23.11 Definition and misuse of the word "diamond."

(a) A diamond is a natural mineral consisting essentially of pure carbon crystallized in the isometric system. It is found in many colors. Its hardness is 10; its specific gravity is approximately 3.52; and it has a refractive index of 2.42.

(b) It is unfair or deceptive to use the unqualified word "diamond" to describe or identify any object or product not meeting the requirements specified in the definition of diamond provided above, or which, though meeting such requirements, has not been symmetrically fashioned with at least seventeen (17) polished facets.

Note 1 to paragraph (b):  It is unfair or deceptive to represent, directly or by implication, that industrial grade diamonds or other non-jewelry quality diamonds are of jewelry quality.

(c) The following are examples of descriptions that are not considered unfair or deceptive:

(1) The use of the words "rough diamond" to describe or designate uncut or unfaceted objects or products satisfying the definition of diamond provided above; or

(2) The use of the word "diamond" to describe or designate objects or products satisfying the definition of diamond but which have not been symmetrically fashioned with at least seventeen (17) polished facets when in immediate conjunction with the word "diamond" there is either a disclosure of the number of facets and shape of the diamond or the name of a type of diamond that denotes shape and that usually has less than seventeen (17) facets (e.g., "rose diamond").

Note 2 to paragraph (c):  Additional guidance about imitation and laboratory-created diamond representations and misuse of words "gem," "real," "genuine," "natural," etc., are set forth in § 23.23, 23.24, and 23.25.

23.12 Misuse of the words "flawless," "perfect," etc.

(a) It is unfair or deceptive to use the word "flawless" to describe any diamond that discloses flaws, cracks, inclusions, carbon spots, clouds, internal lasering, or other blemishes or imperfections of any sort when examined under a corrected magnifier at 10-power, with adequate illumination, by a person skilled in diamond grading.

(b) It is unfair or deceptive to use the word "perfect," or any representation of similar meaning, to describe any diamond unless the diamond meets the definition of "flawless" and is not of inferior color or make.

(c) It is unfair or deceptive to use the words "flawless" or "perfect" to describe a ring or other article of jewelry having a "flawless" or "perfect" principal diamond or diamonds, and supplementary stones that are not of such quality, unless there is a disclosure that the description applies only to the principal diamond or diamonds.

23.13 Disclosure of treatments to diamonds.

A diamond is a gemstone product. Treatments to diamonds should be disclosed in the manner prescribed in § 23.22 of these guides, Disclosure of treatments to gemstones.

23.14 Misuse of the term "blue white."

It is unfair or deceptive to use the term "blue white" or any representation of similar meaning to describe any diamond that under normal, north daylight or its equivalent shows any color or any trace of any color other than blue or bluish.

23.15 Misuse of the term "properly cut," etc.

It is unfair or deceptive to use the terms "properly cut," "proper cut," "modern cut," or any representation of similar meaning to describe any diamond that is lopsided, or is so thick or so thin in depth as to detract materially from the brilliance of the stone.

Note to § 23.15:  Stones that are commonly called "fisheye" or "old mine" should not be described as "properly cut," "modern cut," etc.

23.16 Misuse of the words "brilliant" and "full cut."

It is unfair or deceptive to use of unqualified expressions "brilliant," "brilliant cut," or "full cut" to describe, identify, or refer to any diamond except a round diamond that has at least thirty-two (32) facets plus the table above the girdle and at least twenty-four (24) facets below.

Note to § 23.16: Such terms should not be applied to single or rose-cut diamonds. They may be applied to emerald-(rectangular) cut, pear-shaped, heart-shaped, oval-shaped, and marquise-(pointed oval) cut diamonds meeting the above-stated facet requirements when, in immediate conjunction with the term used, the form of the diamond is disclosed.

23.17 Misrepresentation of weight and "total weight."

(a) It is unfair or deceptive to misrepresent the weight of a diamond.

(b) It is unfair or deceptive to use the word "point" or any abbreviation in any representation, advertising, marking, or labeling to describe the weight of a diamond, unless the weight is also stated as decimal parts of a carat (e.g., 25 points or .25 carat).

Note 1 to paragraph (b):  A carat is a standard unit of weight for a diamond and is equivalent to 200 milligrams (1/5 gram). A point is one one hundredth (1/100) of a carat.

(c) If diamond weight is stated as decimal parts of a carat (e.g., .47 carat), the stated figure should be accurate to the last decimal place. If diamond weight is stated to only one decimal place (e.g., .5 carat), the stated figure should be accurate to the second decimal place (e.g., ".5 carat" could represent a diamond weight between .495-.504).

(d) If diamond weight is stated as fractional parts of a carat, a conspicuous disclosure of the fact that the diamond weight is not exact should be made in close proximity to the fractional representation and a disclosure of a reasonable range of weight for each fraction (or the weight tolerance being used) should also be made.

Note to paragraph (d):  When fractional representations of diamond weight are made, as described in paragraph d of this section, in catalogs or other printed materials, the disclosure of the fact that the actual diamond weight is within a specified range should be made conspicuously on every page where a fractional representation is made. Such disclosure may refer to a chart or other detailed explanation of the actual ranges used. For example, "Diamond weights are not exact; see chart on p.X for ranges."

23.18 Definitions of various pearls.

As used in these guides, the terms set forth below have the following meanings:

(a) Pearl: A calcareous concretion consisting essentially of alternating concentric layers of carbonate of lime and organic material formed within the body of certain mollusks, the result of an abnormal secretory process caused by an irritation of the mantle of the mollusk following the intrusion of some foreign body inside the shell of the mollusk, or due to some abnormal physiological condition in the mollusk, neither of which has in any way been caused or induced by humans.

(b) Cultured Pearl: The composite product created when a nucleus (usually a sphere of calcareous mollusk shell) planted by humans inside the shell or in the mantle of a mollusk is coated with nacre by the mollusk.

(c) Imitation Pearl: A manufactured product composed of any material or materials that simulate in appearance a pearl or cultured pearl.

(d) Seed Pearl: A small pearl, as defined in (a), that measures approximately two millimeters or less.

23.19 Misuse of the word "pearl."

(a) It is unfair or deceptive to use the unqualified word "pearl" or any other word or phrase of like meaning to describe, identify, or refer to any object or product that is not in fact a pearl, as defined in § 23.18(a).

(b) It is unfair or deceptive to use the word "pearl" to describe, identify, or refer to a cultured pearl unless it is immediately preceded, with equal conspicuousness, by the word "cultured" or "cultivated," or by some other word or phrase of like meaning, so as to indicate definitely and clearly that the product is not a pearl.

(c) It is unfair or deceptive to use the word "pearl" to describe, identify, or refer to an imitation pearl unless it is immediately preceded, with equal conspicuousness, by the word "artificial," "imitation," or "simulated," or by some other word or phrase of like meaning, so as to indicate definitely and clearly that the product is not a pearl.

(d) It is unfair or deceptive to use the terms "faux pearl," "fashion pearl," "Mother of Pearl," or any other such term to describe or qualify an imitation pearl product unless it is immediately preceded, with equal conspicuousness, by the word "artificial," "imitation," or "simulated," or by some other word or phrase of like meaning, so as to indicate definitely and clearly that the product is not a pearl.

23.20 Misuse of terms such as "cultured pearl," "seed pearl," "Oriental pearl," "natura," "kultured," "real," "gem," "synthetic," and regional designations.

(a) It is unfair or deceptive to use the term "cultured pearl," "cultivated pearl," or any other word, term, or phrase of like meaning to describe, identify, or refer to any imitation pearl.

(b) It is unfair or deceptive to use the term "seed pearl" or any word, term, or phrase of like meaning to describe, identify, or refer to a cultured or an imitation pearl, without using the appropriate qualifying term "cultured" (e.g., "cultured seed pearl") or "simulated," "artificial," or "imitation" (e.g., "imitation seed pearl").

(c) It is unfair or deceptive to use the term "Oriental pearl" or any word, term, or phrase of like meaning to describe, identify, or refer to any industry product other than a pearl taken from a salt water mollusk and of the distinctive appearance and type of pearls obtained from mollusks inhabiting the Persian Gulf and recognized in the jewelry trade as Oriental pearls.

(d) It is unfair or deceptive to use the word "Oriental" to describe, identify, or refer to any cultured or imitation pearl.

(e) It is unfair or deceptive to use the word "natura," "natural," "nature’s," or any word, term, or phrase of like meaning to describe, identify, or refer to a cultured or imitation pearl. It is unfair or deceptive to use the term "organic" to describe, identify, or refer to an imitation pearl, unless the term is qualified in such a way as to make clear that the product is not a natural or cultured pearl.

(f) It is unfair or deceptive to use the term "kultured," "semi-cultured pearl," "cultured-like," "part-cultured," "pre-mature cultured pearl," or any word, term, or phrase of like meaning to describe, identify, or refer to an imitation pearl.

(g) It is unfair or deceptive to use the term "South Sea pearl" unless it describes, identifies, or refers to a pearl that is taken from a salt water mollusk of the Pacific Ocean South Sea Islands, Australia, or Southeast Asia. It is unfair or deceptive to use the term "South Sea cultured pearl" unless it describes, identifies, or refers to a cultured pearl formed in a salt water mollusk of the Pacific Ocean South Sea Islands, Australia, or Southeast Asia.

(h) It is unfair or deceptive to use the term "Biwa cultured pearl" unless it describes, identifies, or refers to cultured pearls grown in fresh water mollusks in the lakes and rivers of Japan.

(i) It is unfair or deceptive to use the word "real," "genuine," "precious," or any word, term, or phrase of like meaning to describe, identify, or refer to any imitation pearl.

(j) It is unfair or deceptive to use the word "gem" to describe, identify, or refer to a pearl or cultured pearl that does not possess the beauty, symmetry, rarity, and value necessary for qualification as a gem.

Note to paragraph (j):  Use of the word "gem" with respect to cultured pearls should be avoided since few cultured pearls possess the necessary qualifications to properly be termed "gems." Imitation pearls should not be described as "gems."

(k) It is unfair or deceptive to use the word "synthetic" or similar terms to describe cultured or imitation pearls.

(l) It is unfair or deceptive to use the terms "Japanese Pearls," "Chinese Pearls," "Mallorca Pearls," or any regional designation to describe, identify, or refer to any cultured or imitation pearl, unless the term is immediately preceded, with equal conspicuousness, by the word "cultured," "artificial," "imitation," or "simulated," or by some other word or phrase of like meaning, so as to indicate definitely and clearly that the product is a cultured or imitation pearl.

23.21 Misrepresentation as to cultured pearls.

It is unfair or deceptive to misrepresent the manner in which cultured pearls are produced, the size of the nucleus artificially inserted in the mollusk and included in cultured pearls, the length of time that such products remained in the mollusk, the thickness of the nacre coating, the value and quality of cultured pearls as compared with the value and quality of pearls and imitation pearls, or any other material matter relating to the formation, structure, properties, characteristics, and qualities of cultured pearls.

23.22 Disclosure of treatments to gemstones.

It is unfair or deceptive to fail to disclose that a gemstone has been treated if:

(a) the treatment is not permanent. The seller should disclose that the gemstone has been treated and that the treatment is or may not be permanent;

(b) the treatment creates special care requirements for the gemstone. The seller should disclose that the gemstone has been treated and has special care requirements. It is also recommended that the seller disclose the special care requirements to the purchaser;

(c) the treatment has a significant effect on the stone’s value. The seller should disclose that the gemstone has been treated.

Note to § 23.22: The disclosures outlined in this section are applicable to sellers at every level of trade, as defined in § 23.0(b) of these Guides, and they may be made at the point of sale prior to sale; except that where a jewelry product can be purchased without personally viewing the product, (e.g., direct mail catalogs, online services, televised shopping programs) disclosure should be made in the solicitation for or description of the product.

23.23 Misuse of the words "ruby," "sapphire," "emerald," "topaz," "stone," "birthstone," "gemstone," etc.
(a) It is unfair or deceptive to use the unqualified words "ruby," "sapphire," "emerald," "topaz," or the name of any other precious or semi-precious stone to describe any product that is not in fact a natural stone of the type described.

(b) It is unfair or deceptive to use the word "ruby," "sapphire," "emerald," "topaz," or the name of any other precious or semi-precious stone, or the word "stone," "birthstone," "gemstone,'' or similar term to describe a laboratory-grown, laboratory-created, [manufacturer name]-created, synthetic, imitation, or simulated stone, unless such word or name is immediately preceded with equal conspicuousness by the word "laboratory-grown," "laboratory-created," "[manufacturer name]-created," "synthetic," or by the word "imitation" or "simulated," so as to disclose clearly the nature of the product and the fact it is not a natural gemstone.

Note to paragraph (b):  The use of the word "faux" to describe a laboratory-created or imitation stone is not an adequate disclosure that the stone is not natural.

(c) It is unfair or deceptive to use the word "laboratory-grown," "laboratory-created," "[manufacturer name]-created," or "synthetic" with the name of any natural stone to describe any industry product unless such industry product has essentially the same optical, physical, and chemical properties as the stone named.

Misuse of the words "real," "genuine," "natural," "precious," etc.

It is unfair or deceptive to use the word "real," "genuine," "natural," "precious," "semi-precious," or similar terms to describe any industry product that is manufactured or produced artificially.

23.25 Misuse of the word "gem."
(a) It is unfair or deceptive to use the word "gem" to describe, identify, or refer to a ruby, sapphire, emerald, topaz, or other industry product that does not possess the beauty, symmetry, rarity, and value necessary for qualification as a gem.

(b) It is unfair or deceptive to use the word "gem" to describe any laboratory-created industry product unless the product meets the requirements of paragraph (a) of this section and unless such word is immediately accompanied, with equal conspicuousness, by the word "laboratory-grown," "laboratory-created," or "[manufacturer-name]-created," "synthetic," or by some other word or phrase of like meaning, so as to clearly disclose that it is not a natural gem.

Note to § 23.25:  In general, use of the word "gem" with respect to laboratory-created stones should be avoided since few laboratory-created stones possess the necessary qualifications to properly be termed "gems." Imitation diamonds and other imitation stones should not be described as "gems." Not all diamonds or natural stones, including those classified as precious stones, possess the necessary qualifications to be properly termed "gems."

23.26 Misuse of the words "flawless," "perfect," etc.

(a) It is unfair or deceptive to use the word "flawless" as a quality description of any gemstone that discloses blemishes, inclusions, or clarity faults of any sort when examined under a corrected magnifier at 10-power, with adequate illumination, by a person skilled in gemstone grading.

(b) It is unfair or deceptive to use the word "perfect" or any representation of similar meaning to describe any gemstone unless the gemstone meets the definition of "flawless" and is not of inferior color or make.

(c) It is unfair or deceptive to use the word "flawless," "perfect," or any representation of similar meaning to describe any imitation gemstone.

Appendix--Exemptions Recognized in the Assay for Quality of Gold Alloy, Gold Filled, Gold Overlay, Rolled Gold Plate, Silver, and Platinum Industry Products

(a) Exemptions recognized in the industry and not to be considered in any assay for quality of a karat gold industry product include springs, posts, and separable backs of lapel buttons, posts and nuts for attaching interchangeable ornaments, metallic parts completely and permanently encased in a nonmetallic covering, field pieces and bezels for lockets,10  and wire pegs or rivets used for applying mountings and other ornaments, which mountings or ornaments shall be of the quality marked.

Note:  Exemptions recognized in the industry and not to be considered in any assay for quality of a karat gold optical product include: the hinge assembly (barrel or other special types such as are customarily used in plastic frames); washers, bushings, and nuts of screw assemblies; dowels; springs for spring shoe straps; metal parts permanently encased in a non-metallic covering; and for oxfords,11 coil and joint springs.

(b) Exemptions recognized in the industry and not to be considered in any assay for quality of a gold filled, gold overlay and rolled gold plate industry product, other than watchcases, include joints, catches, screws, pin stems, pins of scarf pins, hat pins, etc., field pieces and bezels for lockets, posts and separate backs of lapel buttons, bracelet and necklace snap tongues, springs, and metallic parts completely and permanently encased in a nonmetallic covering.

Note: Exemptions recognized in the industry and not to be considered in any assay for quality of a gold filled, gold overlay and rolled gold plate optical product include: screws; the hinge assembly (barrel or other special types such as are customarily used in plastic frames); washers, bushings, tubes and nuts of screw assemblies; dowels; pad inserts; springs for spring shoe straps, cores and/or inner windings of comfort cable temples; metal parts permanently encased in a non-metallic covering; and for oxfords, the handle and catch.

(c) Exemptions recognized in the industry and not to be considered in any assay for quality of a silver industry product include screws, rivets, springs, spring pins for wrist watch straps; posts and separable backs of lapel buttons; wire pegs, posts, and nuts used for applying mountings or other ornaments, which mountings or ornaments shall be of the quality marked; pin stems (e.g., of badges, brooches, emblem pins, hat pins, and scarf pins, etc.); levers for belt buckles; blades and skeletons of pocket knives; field pieces and bezels for lockets; bracelet and necklace snap tongues; any other joints, catches, or screws; and metallic parts completely and permanently encased in a nonmetallic covering.

(d) Exemptions recognized in the industry and not to be considered in any assay for quality of an industry product of silver in combination with gold include joints, catches, screws, pin stems, pins of scarf pins, hat pins, etc., posts and separable backs of lapel buttons, springs, and metallic parts completely and permanently encased in a nonmetallic covering.

(e) Exemptions recognized in the industry and not to be considered in any assay for quality of a platinum industry product include springs, winding bars, sleeves, crown cores, mechanical joint pins, screws, rivets, dust bands, detachable movement rims, hat-pin stems, and bracelet and necklace snap tongues. In addition, the following exemptions are recognized for products marked in accordance with section 23.8(b)(5) of these Guides (i.e., products that are less than 500 parts per thousand platinum): pin tongues, joints, catches, lapel button backs and the posts to which they are attached, scarf-pin stems, hat pin sockets, shirt-stud backs, vest-button backs, and ear-screw backs, provided such parts are made of the same quality platinum as is used in the balance of the article.

Footnotes

The Guides for the Watch Industry, 16 CFR part 245, address watchcases and permanently attached watchbands.

See § 23.4(c) for examples of acceptable markings and descriptions.

The term substantial thickness means that all areas of the plating are of such thickness as to assure a durable coverage of the base metal to which it has been affixed. Since industry products include items having surfaces and parts of surfaces that are subject to different degrees of wear, the thickness of plating for all items or for different areas of the surface of individual items does not necessarily have to be uniform.

A product containing 1 micron (otherwise known as µ) of 12 karat gold is equivalent to one-half micron of 24 karat gold.

Under the National Stamping Act, articles or parts made of gold or of gold alloy that contain no solder have a permissible tolerance of three parts per thousand. If the part tested contains solder, the permissible tolerance is seven parts per thousand. For full text, see 15 U.S.C. 295, et seq.

Under the National Stamping Act, sterling silver articles or parts that contain no solder have a permissible tolerance of four parts per thousand. If the part tested contains solder, the permissible tolerance is ten parts per thousand. For full text, see 15 U.S.C. 294, et seq.

Field pieces of lockets are those inner portions used as frames between the inside edges of the locket and the spaces for holding pictures. Bezels are the separable inner metal rings to hold the pictures in place.

Oxfords are a form of eyeglasses where a flat spring joins the two eye rims and the tension it exerts on the nose serves to hold the unit in place. Oxfords are also referred to as pince nez.


From the FTC website located at: http://www.ftc.gov/bcp/guides/jewel-gd.shtm

We Carry Shady Brady Hats!

John Brady has been making hats for over thirty years. His business, Shady Brady Hats is now located in Northern California. However, John's personal hat history has taken him around the world learning, developing and creating the methods used today to create the distinctive Shady Brady Hat line.

Shady Brady guarantees their raffia straw hats against breakage for one full year after purchase. These raffia straw hats are completely crushable and packable. They easily return to their original shape.

















We carry Shady Brady hats in men's and women's styles, including the "hot" Bon Jovi and Julia unisex cowboy hats.

The hats we feature are handmade of raffia straw, toyo straw and wool felt.

Shady Brady hats are hand made in the USA!











Videos Of Jon Bon Jovi Wearing His Namesake Shady Brady Hat!

About Black Hills Gold Jewelry Products

Rings:
Almost all of them are 10K yellow gold with the BHG design on them. That is 10 and 12K solid gold. (Some wedding rings are 14K and 18K gold.) Those that are BHG on sterling silver have sterling silver shanks.


Pendants:
The BHG design usually lies on 10K gold unless the pendant is quite large and not very expensive. Gold is so high, that this is a dead giveaway. The chains are usually 14K gold filled unless otherwise specified. Once again, BHG on sterling silver comes on sterling silver chains and have a sterling silver base.

Lockets:
The BHG design usually lies on gold plated or gold filled base metal. If it is not indicated in a listing, please check what category it is listed in.

Earrings:
The posts, backs and wires are 14K yellow gold. The design is most always 10K yellow gold with the 12K BHG gold design on it. BHG on sterling earrings have stainless steel posts and backs or wires. The base of the earrings are sterling silver. The accents, grapevines and clusters are always 10K yellow gold.

Money Clips:
Usually are gold plated or gold filled base metal with the BHG design on them of 10K gold grapes and vines and 12K gold leaves. Some are created with a baked on black powder over the original base.

Watches:
They vary and usually have additional info about the bezels, bands and etc. within the description.

Our Black Hills Gold On Silver Products All of our silver is sterling silver. Sterling silver is 92.5% pure silver (.925) metal. This standard is used to assure consistent quality among sterling products.

Silver that is not "sterling" or ".925" has less pure silver content and will often be darker in color and less shiny. Sterling is 92.5% pure instead of 100% pure in order to achieve the requisite hardness and stability to resist wear and tear, and hold its shape.

When it is BHG on Sterling, it is pretty obvious which parts are gold. It is usually the leaves and they are 12K gold.

Black Hills Gold Legend

Black Hills Gold Legend

According to legend, the Black Hills Gold design was created by French goldsmith, Henri Lebeau. Many years ago, the young Frenchman designed and made jewelry in Paris. After he perfected his method, he came to America. During the 1870's Gold Rush, he decided to go to California and make his fortune.

When he reached the rugged Black Hills of South Dakota, he became lost. He wandered for days without food and water. Lebeau fell asleep and had a dream of a mountain stream with grapevines growing on the banks.

Upon awakening, he walked over a rise and found the stream and grapevines just as he had dreamed and out of gratitude, he dedicated his life and talents to creating jewelry in the shapes of grape clusters and leaves fashioned in rose, green and yellow gold.

The Legend also has it that good luck comes to all who wear Black Hills Gold Jewelry!

More Than Grapes, Vines And Leaves!

The traditional design of Black Hills Gold is 12K pink and green gold leaves, 10K yellow gold grapevines and grape clusters.

Today, while keeping with tradition to some extent, there are new designs that keep Black Hills Gold exciting.

You will find roses, daisies, dolphins, dragonflies, butterlies, turtles and other interesting nature inspired designs.

In keeping with the heritage of South Dakota, you will also find desings that are inspired by the Dakota and Lakota people. This can range from feathers to dream catchers. All of which are highly detailed.

There are also many beautiful inspirational designs to chose from. Some incorporate roses and other features, creating beautifully dramatic effects.

Over the years, sterling silver was introduced. It makes Black Hills Gold more affordable, it appeals to those who prefer the silver color over gold and it adds a whole new look to the designs. Now, more people than ever before, adorn themselves with this lovely jewelry.

Black Hills Gold really is more than grapes, vines and leaves!

About Our Gemstone And Diamond Jewelry

Carat Weight Of Gemstones:

Every now and then someone wants to know the carat weight of our Black Hills Gold gemstones. We give the carat weight of diamond jewelry but we do not on gemstones. We only give measurements of gemstones that are not diamonds.

Conflict Free Diamonds:

All diamonds in Landstrom's Black Hills Gold Jewelry are conflict free. This means that their diamonds do not originate from conflict countries. These diamonds are of certified origin which are guaranteed not to be obtained through the use of violence, human rights abuses, child labor, or environmental destruction. These diamonds are individually tracked through their full chain of custody to ensure that ethical practices are used in mining, cutting, and polishing. In addition, conflict-free diamonds are mined in an environmentally responsible fashion.

These same companies only use diamonds that are NOT enhanced. They are naturally beautiful diamonds.

An informative video about Blood Diamonds.

Creating Black Hills Gold

The creation process of Black Hills Gold jewelry begins with pure 24K gold.

It is alloyed with other metals for durability.

Gold and silver alloys with a small amount of copper tend to be 12K green gold.

Gold and copper tend to be 12K rose in color (some call it pink).

The traditional pink and green color gold used for leaves is created and the bars are prepared for rolling.

The alloyed gold bars are rolled by presses to different degrees of thickness for the various pieces of jewlery they are intended to create.

Essential parts are pain stakingly stamped, individually, out of the rolled gold sheets using various patterns and dies.

The gold leaves and other portions of the pattern are added to cast jewelry, which is created by "lost wax casting."

Lost wax casting starts with a metal model of a jewelry piece. A vulcanized rubber mold is made from the metal model. Hot wax is injected into the mold, creating a wax model of the piece.

The wax model is taken from the mold and mounted on a wax stem called a sprue, which creates an airway for casting. Casting plaster is poured around the wax pattern in a steel cylinder.

Once hardened, the cylinder is oven baked for several hours, causing the wax to completely melt away. The cavity left behind provides an exact duplicate of the piece and is filled with molten gold.

The cylinder is then placed in cold water, shattering the plaster, leaving behind only the gold jewelry.

These pieces are then ground and polished before adding the stamped portions.

The stamped portions are individually soldered by hand to the cast with karat gold solder.

The jewelry is then cleaned in a mild acid bath and then it is inspected for quality.

Then, electro-plate is added to the pieces with 24 Karat yellow gold.

(I believe that only one manufacturer adds the electro-plate. Those that do not, still use the wriggling process to create the frosty finish.)

Wriggling, one of the final process, removes the plating from the pink and green leaves, creating a textured or frosty effect.

Each intricate detail of the leaves are engraved by hand for a fabulous finish.

Polishing in several different steps is then done to bring out brilliant shine of the piece.

At this point, if the item has a gemstone, it will be set.

After careful inspection, the piece is ready for the public.

The familiar design is almost the same today as it was a century ago.

Today, each piece of Black Hills Gold Jewelry is manufactured through a series of up to 40 different steps and are necessary to capture the same dramatic detail.

Each tiny leaf or swirl is made with infinite care. The perfection of detail requires that artists spend from one to eight hours creating a single piece.

The exquisitely beautiful tri-color gold jewelry is hand made in Rapid City, South Dakota.

Jewelry Casting - General Information

Black Hills Gold is created on a much larger scale but this will give you an idea about lost wax casting.



Part One

Part Two

Part Three

Welcome to our new blog!

We want to welcome everyone to our new blog.


With any luck, we will be able to hold your interest and provide useful content.

Federal Mandate On Black Hills Gold Manufacturing

633 F2d 746
Black Hills Jewelry Manufacturing Co -V- Gold Rush Inc

633 F.2d 746              208 U.S.P.Q. 631, 7 Fed. R. Evid. Serv. 252

Black Hills Jewelry Manufacturing Co., a South Dakota Corporation, F. L. Thorpe Company, a South Dakota Corporation and Stamper Jewelry Manufacturing, a South Dakota Corporation, Appellees,

-V-

Gold Rush, Inc., a North Dakota Corporation a/k/a "Black Hills Gold Jewelry by Gold Rush", Appellant, and Kirk Enterprises, Inc., a New Mexico Corporation, a/k/a "Black Hills Gold Jewelry by Kirk", LaBelle's, a Corporation, Appellant, Herberger's Department Store, a Corporation, Appellant.

No. 80-1426.
United States Court of Appeals, Eighth Circuit.

Submitted Sept. 8, 1980.          Decided Nov. 13, 1980.

Ronald L. Haskvitz, Minneapolis, Minn., for appellants.

Geo. A. Bangs and James P. Hurley, Rapid City, S.D., for appellees.

Before Bright, Ross and Stephenson, Circuit Judges.

Stephenson, Circuit Judge.
----
Plaintiffs-appellees are three South Dakota corporations located in the Black Hills area of South Dakota. They are in the business of manufacturing a certain design of gold jewelry which they market under the name "Black Hills Gold Jewelry." Appellees brought this action under section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), seeking injunctive relief against the use by defendants-appellants of the words "Black Hills Gold Jewelry" to describe jewelry of a style similar to that of appellees, but not manufactured in the Black Hills of South Dakota.

The district court, -1- relying on 15 U.S.C. §§ 1125(a) and 1127, held that although appellees were not entitled to the exclusive use of the phrase "Black Hills Gold Jewelry," an injunction would issue prohibiting appellants from using the phrases "Black Hills Gold" or "Black Hills Gold Jewelry" to describe jewelry not made in the Black Hills of South Dakota. Appellants' major contentions on appeal are that: (1) The district court incorrectly held appellants could be afforded relief based on the existence of a common law unregistered certification mark; (2) the district court was clearly erroneous in several factual findings especially in finding that the phrase "Black Hills Gold Jewelry" was merely geographically descriptive and not a generic term for the design of the gold jewelry; (3) several evidentiary rulings by the district court were improper; and (4) the issuing of the injunction was improper. We affirm.

I. Background
Appellees are three separate, distinct, and independent companies that manufacture basically only one product, three-color gold jewelry in a grape and leaf design. All three appellees market their product as "Black Hills Gold Jewelry," sometimes preceded by their corporate name and the word "original" or "genuine." See Findings of Fact 2-11, Black Hills Jewelry Manufacturing Co. v. LaBelle's, 489 F.Supp. 754, 760 (D.S.D.1980). All three companies can trace their beginnings back to one of the earliest manufacturers of "Black Hills Gold Jewelry," Mr. F. L. Thorpe.

Until recently, appellees were the only manufacturers of this design of jewelry who marketed it as "Black Hills Gold Jewelry," and their only place of manufacture was and is the Black Hills of South Dakota. Beginning sometime in 1977, other manufacturers and retailers began to market jewelry of this or a similar design as "Black Hills Gold Jewelry," although none of the jewelry was manufactured in the Black Hills. -2-

In 1978, appellant Gold Rush, Inc. began manufacturing three-color gold grape and leaf design jewelry in Bismarck, North Dakota and selling it as "Black Hills Gold Jewelry by Gold Rush." The other two appellants are retailers of "Black Hills Gold Jewelry." Appellant Herberger's purchased jewelry which was sold as "Black Hills Gold" from Gold Rush, Inc., and appellant LaBelle's purchased jewelry which was sold as "Black Hills Gold" from both Gold Rush, Inc. and Felco Jewel Industries, a manufacturer of jewelry located in Rio Rancho, New Mexico. Appellees brought suit in August 1979, against Gold Rush and later against the retailers. These suits were consolidated for trial.

On May 1, 1980, the district court issued its Findings of Facts, Conclusions of Law, and Memorandum Opinion. See Black Hills Jewelry Manufacturing Co. v. LaBelle's, 489 F.Supp. 754 (D.S.D.1980). In addition to the facts summarized above and detailed infra as discussion requires, the district court made the following findings of fact which are relevant to this appeal:

In connection with its store located in Sioux Falls, South Dakota, Defendant Herberger's advertised in the Sioux Falls Argus Leader a sale of "Black Hills Gold Jewelry by Gold Rush" and included in said advertisement a picture of Mount Rushmore National Monument, which is located in the Black Hills of South Dakota.

Defendant LaBelle's has also run advertisements promoting the sale of so-called Black Hills Gold Jewelry in newspapers in Sioux Falls, South Dakota, Grand Forks, North Dakota and Rapid City, South Dakota. These advertisements have included pictures of Mount Rushmore National Monument, even though the jewelry advertised was manufactured in either Bismarck, North Dakota or Rio Rancho, New Mexico.

The consuming public generally considers the terms Black Hills Gold or Black Hills Gold Jewelry to refer to jewelry products manufactured in the Black Hills of South Dakota.

The actions of the Defendants in promoting and selling jewelry not manufactured in the Black Hills as Black Hills Gold or Black Hills Gold Jewelry has created the likelihood of consumer confusion as to the origin of products labelled as Black Hills Gold or Black Hills Gold Jewelry.

The first time any of the Plaintiffs became aware of the use of the name Black Hills Gold Jewelry by a manufacturer of three-color gold, grape and leaf design jewelry located outside the Black Hills of South Dakota occurred approximately three years prior to the filing of this litigation. Upon Plaintiffs' demand, the Rhode Island firm producing such jewelry stopped using the term Black Hills Gold to identify its products.

The Defendants' first use of the name Black Hills Gold or Black Hills Gold Jewelry on any of their jewelry products occurred approximately eighteen months prior to the commencement of this litigation. Plaintiffs filed this action soon after the Defendants openly advertised their products in local newspapers as Black Hills Gold Jewelry.

Plaintiffs have been reasonably diligent in taking action to protect the name Black Hills Gold Jewelry from use by manufacturers of similar products located outside the Black Hills of South Dakota.

Plaintiffs have not been guilty of unclean hands surrounding their attempts to protect their use of the terms Black Hills Gold and Black Hills Gold Jewelry.

Use of the terms Black Hills Gold or Black Hills Gold Jewelry will cause consumers to purchase products of the Defendants when they in fact wished to purchase a product manufactured in the Black Hills of South Dakota. This will enable the Defendants to wrongfully trade upon and profit from Plaintiff's reputation and good will and will result in business losses to Plaintiffs.

Id. at 761-62. The district court granted appellees injunctive relief on what we view as two alternative holdings. The court first stated:

The statute (section 43(a) of the Lanham Act, 11 U.S.C. § 1125(a)) under which plaintiffs brought this action appears to continue this tradition of providing protection against outsiders for those using a geographical name. The statute prohibits a "false designation of origin," which would appear to prohibit a producer from labelling his product so as to make consumers believe it came from somewhere it did not.

Id. at 759. The court also held that:
Another section of the Lanham Act (15 U.S.C. § 1127) deals with what is known as a certification mark. This section also appears to provide protection for a group of producers using a geographical name to designate their product.

II. Common Law Certification Mark
Neither party questions the district court's conclusion that appellees are not entitled to exclusive use of the phrase "Black Hills Gold Jewelry" as a trademark. The district court so concluded because appellees were unable to establish secondary meaning. See Conclusions of Law 6, Black Hills Jewelry Manufacturing Co. v. LaBelle's, supra, 489 F.Supp. at 762.

Appellants object to what they contend to be the sole holding of the district court-that appellees were entitled to prohibit appellants from using the phrase "Black Hills Gold Jewelry" by virtue of appellees having a common law unregistered certification mark. We agree with appellants that appellees are not entitled to the benefit of a certification mark.

15 U.S.C. § 1127 defines certification mark as "a mark used upon or in connection with the products or services of one or more persons other than the owner of the mark to certify regional or other origin * * *." (Emphasis added.) Here the products are those of appellees, who are not "one or more persons other than the owner of the mark." It is clear that the language of the statute prohibits the producers of the goods from being the owner of a certification mark. -3-

III. Section 43(a) Of The Lanham Act
We disagree with appellants' argument that the district court relied solely on the existence of a common law unregistered certification mark to afford relief. The district court's Memorandum Opinion discusses in detail unfair competition under section 43(a) of the Lanham Act, 11 U.S.C. § 1125(a). See Black Hills Jewelry Manufacturing Co. v. LaBelle's, supra, 489 F.Supp. at 756-59. It concluded that pre-Lanham Act cases established it was possible for a group of manufacturers to assert the right to a geographical designation without establishing secondary meaning and a single source. Id. at 757. The court also concluded that section 43(a) continued this tradition of providing protection against outsiders who use the same geographical designation. Id. at 759.

It is our view that the Findings of Fact support a conclusion that appellees are entitled to injunctive relief under section 43(a) of the Lanham Act. We agree with the district court that several cases prior to the Lanham Act protected groups of plaintiffs-producers who asserted their right to the use of a geographical designation in a suit against other producers who did not manufacture their goods in said area but nevertheless used the geographical designation in their name or label. See, e.g., Grand Rapids Furniture Co. v. Grand Rapids Furniture Co., 127 F.2d 245 (7th Cir. 1942); Pillsbury-Washburn Flour Mills Co. v. Eagle, 86 F. 608 (7th Cir. 1898), cert. denied, 173 U.S. 703, 19 S.Ct. 884, 43 L.Ed. 1184 (1899); California Fruit Canners' Ass'n v. Myer, 104 F. 82 (C.C.D.Md.1899).

Section 43(a) does not by its terms restrict the holdings of these cases. In fact section 43(a) obviates several requirements necessary under common law unfair competition. The "single source" rule has been held to be inapplicable to suits under section 43(a), and the "likely to be damaged" provision obviates the necessity of proving actual diversion of trade. For these reasons it has been stated that section 43(a) creates a federal statutory tort sui generis and does not merely codify the common law principles of unfair competition. L'Aiglon Apparel v. Lana Lobell, Inc., 214 F.2d 649, 651 (3d Cir. 1954); Mutation Mink Breeders Association v. Lou Nierenberg Corp., 23 F.R.D. 155, 161 (S.D.N.Y.1959); Gold Seal Company v. Weeks, 129 F.Supp. 928 (D.D.C.1955), aff'd sub nom. S. C. Johnson & Son, Inc. v. Gold Seal Co., 230 F.2d 832 (D.C.Cir.), cert. denied, 352 U.S. 829, 77 S.Ct. 41, 1 L.Ed.2d 50 (1956). See also Potato Chip Institute v. General Mills, Inc., 333 F.Supp. 173, 178-79 (D.Neb.1971), aff'd per curiam on basis of district court's opinion, 461 F.2d 1088 (8th Cir. 1972). See generally 1 R. Callmann, Unfair Competition, Trademarks, & Monopolies § 18.2(b), at 620-22 (3d ed.); J. McCarthy, Trademarks & Unfair Competition § 27:4, at 247-49 (1973); Comment, 58 Neb.L.Rev. 159 (1979); Note, 25 Drake L.Rev. 228 (1975). -4-

The plain meaning of the statute supports these views. Section 43(a) imposes civil liability upon "any person who shall * * * use in connection with any goods * * * a false designation of origin, or any false description or representation, including words or other symbols tending falsely to describe or represent the same." It gives a cause of action to "any person doing business in the locality falsely indicated as that of origin * * * or by any person who believes that he is or is likely to be damaged by the use of any such false description or representation." Clearly appellees fit this definition. As stated in the landmark case of L'Aiglon Apparel v. Lana Lobell, Inc., supra, 214 F.2d at 651:

However similar to or different from pre-existing law, here is a provision of a federal statute which, with clarity and precision adequate for judicial administration, creates and defines rights and duties and provides for their vindication in the federal courts. For illuminating discussions of Section 43(a) and its relation to precedent law, see Callman, False Advertising as a Competitive Tort, 1948, 48 Col.L.Rev. 876, 877-886; Bunn, The National Law of Unfair Competition, 1949, 62 Harv.L.Rev. 987, 998-1000.

Thus evidence of "palming off" or "passing off" is not required for recovery under section 43(a). Mutation Mink Breeders Association v. Lou Nierenberg Corp., supra, 23 F.R.D. at 161; Gold Seal Co. v. Weeks, supra, 129 F.Supp. at 939-40; 1 R. Callmann, supra, § 18.2(b), at 622. The fact appellants' goods may be "of equal quality is not of dispositional significance." Truck Equipment Service Co. v. Fruehauf Corp., 536 F.2d 1210, 1216 (8th Cir. 1976), cert. denied, 429 U.S. 861, 97 S.Ct. 164, 50 L.Ed.2d 139 (1977).

Scotch Whiskey Association v. Barton Distilling Company, 489 F.2d 809 (7th Cir. 1973), aff'g 338 F.Supp. 595 (N.D.Ill.1971), a case similar to the case at bar, allowed recovery under section 43(a). In that case, two producers of Scotch whiskey and an association that promoted Scotch whiskey were granted an injunction against a third producer whose label indicated the product was Scotch whiskey, but whose product was in fact found to have ingredients not from Scotland. The district court found this to be a false designation of origin. The Seventh Circuit affirmed the finding of a section 43(a) violation and was apparently not troubled by any lack of secondary meaning or "single source." The court required nothing more than a showing that the designation was false and that defendant knew or should have known of the falsity. 489 F.2d at 811. See also Community of Roquefort v. William Faehndrich, Inc., 198 F.Supp. 291 (S.D.N.Y.1961), aff'd, 303 F.2d 494 (2d Cir. 1962).

IV. Genericness
Appellants argue that even if recovery would be allowed based on the district court's Findings of Fact, nevertheless several of these Findings of Fact are clearly erroneous and therefore the injunction was still improper. Appellants' major contention on this point is that the district court was clearly erroneous in finding the phrase "Black Hills Gold Jewelry" to be geographically descriptive of the gold jewelry. They argue that the evidence at trial established that the phrase was a generic reference to three-color gold grape and leaf design jewelry no matter where it was manufactured.

If "Black Hills Gold Jewelry" was found to be a generic term, then it would be in the public domain for all to use. Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 9 (2d Cir. 1976). Appellants rely principally on the discussions of genericness in Kellogg Co. v. National Biscuit Co., 305 U.S. 111, 116, 59 S.Ct. 109, 112, 83 L.Ed. 73 (1938) ("shredded wheat" held generic) and Anti-Monopoly, Inc. v. General Mills Fun Group, 611 F.2d 296 (9th Cir. 1979) (involving genericness of "MONOPOLY").

The evidence at trial in the present case was conflicting concerning whether the public generally considered "Black Hills Gold Jewelry" to mean gold jewelry manufactured only in the Black Hills, or instead three-color gold grape and leaf design jewelry wherever produced. The district court found the former to be established by the evidence. For "Black Hills Gold Jewelry" to be generic, it must be applied to three-color gold grape and leaf design jewelry wherever produced. Community of Roquefort v. William Faehndrich, Inc., supra, 198 F.Supp. at 293. Appellants point to no evidence, nor does the record indicate any evidence introduced at trial establishing that outside manufacturers and dealers referred to their jewelry of this type as "Black Hills Gold Jewelry" prior to approximately late 1977 or early 1978. Indeed, appellees point to several manufacturers of gold jewelry of a design similar to that of appellees which had not referred to their product as "Black Hills Gold."

Although some catalogue houses, dealers and manufacturers have used the term to describe three-color gold grape and leaf design jewelry manufactured outside the Black Hills since early 1978, this is not controlling. -5- The first time another manufacturer used the name "Black Hills Gold" (approximately three years prior to this litigation) the appellees complained to the Rhode Island firm which stopped the practice. The appellees brought this action when appellants openly began advertising their product as "Black Hills Gold Jewelry." Findings of Fact 28, 29, Black Hills Jewelry Manufacturing Co. v. LaBelle's, supra, 489 F.Supp. at 762.

Evidence supporting the district court's finding that the term "Black Hills Gold Jewelry" is merely geographically descriptive included the fact appellees had advertised their product in a manner which utilized the history and folklore of the Black Hills of South Dakota. All gold jewelry sold as "Black Hills Gold" had been manufactured in the Black Hills for over one hundred years. Thus an association with the geographical area was established. That appellants had in mind using this favorable association is apparent from their advertisements prominently displaying Mount Rushmore, as well as using historical folklore of the Black Hills in their advertising. In examining all the evidence, we cannot say the district court's finding that the phrase "Black Hills Gold Jewelry" is merely geographically descriptive of origin (see Findings of Fact 9 & 26, Black Hills Jewelry Manufacturing Co. v. LaBelle's supra, 489 F.Supp. at 760, 761) is clearly erroneous.

V. Evidentiary Issues
Appellants allege it was reversible error for the district court to exclude a summary of testimony in Landstrom v. Thorpe, 189 F.2d 46 (8th Cir. 1951), cert. denied, 342 U.S. 819, 72 S.Ct. 37, 96 L.Ed. 620 (1952), -6- introduced in the instant case. The summary had apparently been attached as an appendix to appellant's brief submitted to the appellate court in that case, and were summaries of witnesses' testimony at the trial in federal district court. Appellants argue this testimony indicates that witnesses to that action believed that the term "Black Hills Gold" described the jewelry. The district court held the evidence did not satisfy either Fed.R.Evid. 801, 803, or 804(b)(1). Appellees point out that the exhibit was not an actual transcript of the trial testimony, but summaries submitted by counsel for argument to the circuit court of appeals. It argues these foundational problems also made it proper for the district court to refuse to admit the exhibit.

We agree with the district court that rule 801(d)(1) is inapplicable because none of the prior testimony is by a witness who testified in the instant case. Neither does this court believe that the district court's rulings under 803(3) and 803(8) were improper. The nature of the exhibit and its origin clearly indicated a lack of trustworthiness. Additionally, appellants have not shown that in Landstrom v. Thorpe, supra, the parties involved had similar motives to develop the testimony by direct, cross and redirect examination as required by rule 804(b)(1). It is our view that, in any event, the testimony of three witnesses as to the meaning of the phrase "Black Hills Gold" in 1951 in a lawsuit between manufacturers both located in the Black Hills would be of little probative value in the instant case.

Appellants also contend that exhibit 88 should not have been received. Exhibit 88 was an invoice from Pitlick Jewelry which accompanied the sale of a ring from Mount Rushmore Mountain Company to Milton Shaver, president of Black Hills Jewelry Manufacturing Co. Appellants complain that the lack of trustworthiness of the invoice together with its hearsay nature made admission improper because it does not describe the ring, and the nature and location of Pitlick Jewelry is not apparent. The trial court admitted the evidence "for whatever value it has," and we find no abuse of discretion in this ruling. The apparent purpose of the exhibit was to demonstrate that the jewelry was called "New Mexico Gold" to support the appellees' position "Black Hills Gold" was not generic. The exhibit was merely cumulative and any error would have been harmless.

We have examined the remaining evidentiary questions concerning alleged inconsistencies in the admission and exclusion of certain deposition testimony and trial testimony. We find no abuse of discretion on the part of the trial court in these rulings.

VI. Propriety Of Injunction
Appellants argue that the injunction should not have issued because appellees did not show either irreparable harm or that money damages would be inadequate. They also argue the claim is barred by estoppel, laches, and acquiescence, and that the injunction is too broad.

It is our view that the injunction was proper. The district court found that there was a likelihood of confusion to consumers as to the origin of the products labelled as "Black Hills Gold" or "Black Hills Gold Jewelry." It found that appellees and their predecessors had made this high quality jewelry for over one hundred years and sold it as "Black Hills Gold Jewelry." It also found that appellants' use of the term would cause consumers who wished to purchase a product produced in the Black Hills to purchase appellants' product instead. It stated this would allow appellants to wrongfully profit from appellees' reputation and good will and result in business losses to appellees. See Findings of Fact 9, 26, 27 & 32, Black Hills Jewelry Manufacturing Co. v. LaBelle's, supra, 489 F.Supp. at 760-62.

It is unlikely that appellees could show specific monetary damages, yet clearly under the district court's findings they have suffered injury. To obtain an injunction under section 43(a) appellees need only show that the falsities complained of had a tendency to deceive. Parkway Baking Co. v. Freihofer Baking Co., 255 F.2d 641, 649 (3d Cir. 1958). A finding of tendency to deceive satisfies the requisite of irreparable harm. See Ames Publishing Co. v. Walker-Davis Publications, Inc., 372 F.Supp. 1, 13 (E.D.Pa.1974); Note, 25 Drake L.Rev. 228, 236 (1975). -7-

We agree with the district court that appellees were reasonably diligent in taking action to protect the name "Black Hills Gold Jewelry." A Rhode Island firm which began using the term three years prior to this litigation stopped upon demand by the appellees. This action was brought eighteen months after appellants' first use and soon after appellants began openly advertising their jewelry as "Black Hills Gold" with pictures of Mount Rushmore in the ads. Appellants note appellees had not obtained a trademark, nor had they tried to obtain registration of a certification mark. This is not controlling in an action brought under section 43(a). Boston Professional Hockey Association, Inc. v. Dallas Cap & Emblem Mfg., Inc., 510 F.2d 1004, 1010 (5th Cir. 1975), cert. denied, 423 U.S. 868, 96 S.Ct. 132, 46 L.Ed.2d 98 (1976); Iding v. Anaston, 266 F.Supp. 1015 (N.D.Ill.1967); Comment, 58 Neb.L.Rev. 159, 161 (1979); Note, 25 Drake L.Rev. 228, 232 (1975). The district court's finding of due diligence is not clearly erroneous.

Appellants allege the injunction -8- was too broad. However there was evidence that both appellees and appellants were selling their products in a large geographical region, and it is not necessary that actual confusion of consumers be shown. Appellants were found to have made a false designation of origin of their goods and were enjoined from continuing the deceptive practice. Such an injunction is proper under the circumstances.

Affirmed.
1 The Honorable Andrew W. Bogue, United States District Judge for the District of South Dakota. The district court opinion appears at 489 F.Supp. 754

2 Neither appellants nor appellees obtain all their gold in the Black Hills, and appellees are alleging a false designation of origin only as to the manufacturing of the gold jewelry

3 We express no opinion as to whether the Lanham Act contemplates the protection of "unregistered common law certification marks." See State of Florida v. Real Juices, Inc., 330 F.Supp. 428, 432 (M.D.Fla.1971)

4 Professor Callmann noted that "section 43(a) of the Lanham Act clearly supports a concept far broader than 'the doctrine of the Grand Rapids case.' " 1 R. Callmann, supra, § 18.2(b) at 621-22

5 In fact there was some indication at trial that the owner of Felco convinced catalogue houses that it was permissible to refer to any three-color gold grape and leaf design jewelry as "Black Hills Gold" because it merely described the design of the jewelry

6 Landstrom v. Thorpe, 189 F.2d 46 (8th Cir. 1951) involved a suit by Thorpe against Landstrom to recover damages for wrongful registration of a trademark and unfair competition. The court found for Thorpe, holding that Landstrom had obtained the mark through false and fraudulent representations. Both parties to that action were predecessors to two of the appellees in the instant case

7 (A) showing of a likelihood of confusion of consumers will usually result in proving the requisite likelihood of damage to the plaintiff-competitor. Thus, the prime test of liability under § 43(a) is closely analogous to, if not identical with, the likelihood-of-confusion test of federal and common-law trademark infringement and unfair competition

Since § 43(a) was passed as a consumer protection statute, the courts are not reluctant to allow a commercial plaintiff to obtain an injunction even where the likelihood of pecuniary injury to the plaintiff may be slight. Thus, under § 43(a), Congressional policy appears to encourage commercial companies to act as the fabled "vicarious avenger" of consumer rights. An injunction, as opposed to money damages, is no windfall to the commercial plaintiff. An injunction protects both consumers and the commercial plaintiff from continuing acts of false advertising. The fact that § 43(a) was passed to protect consumers as well as competitors is illustrated by the rule that a likelihood of consumer confusion is sufficient for injunctive relief. An injunction protects the consumer from continued false advertising. Money damages, on the other hand, primarily aid only the competitor, and he is required to satisfy a higher standard of proof as to injury.

J. McCarthy, supra, § 27:5A at 250-51 (footnotes omitted).

8 The injunction stated:

ORDERED that the Defendants, their servants, agents and employees, and all persons acting by, through or under authority of any of the Defendants are permanently enjoined from advertising, promoting, selling or offering for sale as Black Hills Gold or Black Hills Gold Jewelry, any item which is not manufactured in the Black Hills of South Dakota.

Black Hills Jewelry Manufacturing Co. -V- LaBelle's, supra, 489 F.Supp. at 763.                  633 F.2d.