Chap. 413.—An ACT to amend and re-enact an act entitled “An act to protect
_ trade-mark owners, distributors and the public against injurious and un-
economic practices in the distribution of articles ‘under a distinguishing
trade-mark, brand or name; to authorize certain provisions to be included

- in contracts relative to the sale or resale thereof ;,and to provide remedies”,
_. approved March 27, 1936. | | a [fH B. 168]

a a April 1, 1938

©.1. Be it ‘emnetel by the General Assembly af ‘irainia, That an
act: entitled an act to protect trade-mark owners, distributors and the
public against injurious and uneconomic practices in the distribution. of
articles under a distinguishing trade-mark, brand or name; to authorize
certain provisions to be included in contracts relative to the sale or
re-sale thereof ; and to provide remedies, approved March the twenty-
seventh, one thousand nine hundred and thirty-six, be amended and
re-enacted so as to read as follows:
Section 1. The following terms, as used in this act, are hereby
defined as follows:

(A) “Commodity” means any subject of commerce, except meats
and meat products, meal, flour, bakery products, fresh and canned fish,
sea food, fresh and canned fruits and vegetables, coffee, tea, ice, sugar
and wearing apparel.

(B) “Producer” means any grower, baker, maker, manufacturer,
bottler, packer, converter, processor or publisher.

(C) “Wholesaler” means any person selling a commodity other
than a producer or retailer.

(D) “Retailer” means any person selling a commodity to con-
sumers for use. .

(E) “Person” means an individual, a corporation, a partnership.
an association, a joint-stock company, a business trust or any unin-
corporated organization.

Section 2. No contract relating to the sale or resale of a commodity
which bears, or the label or container of which bears, the trade-mark,
brand, or name of the producer or distributor of such commodity and
which commodity is in free and open competition with commodities
of the same general class produced or distributed by others shall be
deemed in violation of any law of the State of Virginia by reason of
any of the following provisions which may be contained in such contract :

(A) That the buyer will not resell such commodity at less Cana)
the minimum price stipulated by the seller.

(B) That the buyer will require of any dealer to whom he may
resell such commodity an agreement that he will not, in turn, resell
at less than the minimum price stipulated by the seller.

(C) That the seller will not sell such commodity :

(1) to any wholesaler, unless such wholesaler will agree not tc
resell the same to any retailer unless the retailer will in turn agree not
to resell the same except to consumers for use and at not less than the
stipulated minimum price, and such wholesaler will likewise agree not
to resell the same to any other wholesaler unless such other whole-
saler will make the same agreement with any wholesaler or retailer tc
whom he may resell; or

(2) to any retailer, unless the retailer will agree not to resel
the same except to consumers for use and at not less than the stipulatec
minimum price. .

Section 3. For the purpose of preventing evasion of the resale
price restrictions imposed in respect of any commodity by any contrac
entered into pursuant to the provisions of this act (except to the exten
authorized by the said contract) :

(a) The offering or giving of any article of value in connectior
with the sale of such commodity ;

(b) The offering or the making of any concession of any kinc
whatsoever (whether by the giving ‘of coupons or otherwise) in -con-
nection with any such sale; or

(c) The sale or offering for sale of such commodity in combina-
tion with any other commodity, “shall be deemed a violation of such
resale price restriction, for which the remedies prescribed by section
six of this act shall be available.

Section 4. No minimum resale price shall be established for any
commodity, under any contract entered into pursuant to the provisions
of this act, by any person other than the owner of the trade-mark,
brand or name used in connection with such commodity or a distributor
specifically authorized to establish said price by the owner of such
trade-mark, brand or name.

Section 5. No contract containing any of the provisions enumer-
ated in section two of this act shall be deemed to preclude the resale
of any commodity covered thereby without reference to such contract
in the following cases:

(A) In closing out the owner’s stock for the bona fide purpose
of discontinuing dealing in any such commodity and plain notice of the
fact is given to the public; provided the owner of such stock shall give
to the producer or distributor of such commodity prompt and reasonable
notice in writing of his intention to close out said stock, and an op-
portunity to purchase such stock at the original invoice price ; |

~(B) When the goods are altered, second-hand, damaged, defaced
or deteriorated and plain notice of the fact is given to the public in the
advertisement and sale thereof, such notice to be conspicuously dis-
played in all advertisements and to be affixed to the commodity ;

(C) By any officer acting under an order of court.

Section 6. Wilfully and knowingly advertising, offering for sale
or selling any commodity at less than the price stipulated in any contract
entered atto pursuant to the provisions of this act, whether the person
so advertising, offering for sale or selling is or is not a party to such
contract, is unfair competition and is actionable at the suit of any per-
son damaged thereby.

Section 7. This act shall not apply to any contract or agreement
between or among producers or distributors or, except as provided in
subdivision (C) of section two of this act between or among whole-
salers, or between or among retailers, as to sale or resale prices.

Section 8. If any section, clause, sentence or paragraph of this
act shall be declared unconstitutional the remaining portions thereof
shall not be affected thereby but such remaining portions shall remain
in full force and effect.

Section 9. All acts or parts of acts inconsistent herewith are
hereby repealed to the extent of such inconsistency. :

Section 10. This act may be known and cited as the ‘Fair Trade

Act”.