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Lucky Calendar Co. v. Cohen

Decided: October 24, 1955.

LUCKY CALENDAR CO., INC., PLAINTIFF-RESPONDENT,
v.
MITCHELL H. COHEN, COUNTY PROSECUTOR, CAMDEN COUNTY, DEFENDANT-APPELLANT



On certification to the Appellate Division of the Superior Court.

For reversal -- Chief Justice Vanderbilt, and Justices Heher, Wachenfeld, Burling, Jacobs and Brennan. For affirmance -- Justice Oliphant. The opinion of the court was delivered by Vanderbilt, C.J. Heher, J., concurring in result.

Vanderbilt

[19 NJ Page 402] This appeal was taken by the defendant to the Appellate Division of the Superior Court from a declaratory judgment of the Law Division of the Superior Court in favor of the plaintiff declaring that its Lucky Calendar sales promotional program was lawful and not a lottery within the prohibition of the Lottery Act, N.J.S. 2 A:121-1 et seq. We certified the matter while pending below.

I.

The plaintiff, Lucky Calendar Co. Inc., an organization engaged in the business of promotional advertising, brought this action seeking a declaratory judgment under N.J.S. 2 A:16-50 et seq., determining that its sales promotional program bearing its trade-mark "Lucky Calendar" is not a lottery within the prohibition of the Lottery Act, N.J.S. 2 A:121-1 et seq., or an activity in violation of the Raffles Licensing Law, R.S. 5:8-50 et seq., or any other criminal statute of this State. This action grew out of the fact that the defendant, the County Prosecutor of Camden County, when he learned of the proposed sales promotion planned by the plaintiff for the Acme Super Markets operated by the American Stores Company within his county, advised the plaintiff that the scheme was of doubtful validity and appeared to have the characteristics and elements of a lottery within the prohibition of our law; and that the plaintiff and its customer, the American Stores Company, would be subject to criminal proceedings, if the "Lucky Calendar" was sponsored and conducted in Camden County. In order to avoid exposing itself and its customer to the operation of our criminal laws, it instituted this action. In answer to the complaint the county prosecutor denied that the proposed activity is a lawful sales promotion and that it does not violate the Lottery Act or the Raffles Licensing Law. The parties stipulated the facts in lieu of taking testimony and the matter was submitted to the trial court for determination on the counter motions for summary judgment.

Inasmuch as the factual situation presented here is novel in this State, we have made a more extended analysis of the plaintiff's scheme than would otherwise be necessary. The facts are undisputed.

The plaintiff has a contract with the American Stores Company to introduce and operate the "Lucky Calendar" promotional advertising program in its 278 super markets and retail stores in this State.

A "Lucky Calendar" consists of three large sheets of paper about 18" x 12" in size, attractively printed in color and bound in calendar fashion, each sheet showing the days of a month, the three sheets together providing a calendar for three consecutive months of the year. The calendar proper is centered at the upper part of the lower half of each of the three sheets and occupies approximately one-sixth of the printed page. It is bordered on the sides and below it with from eight to ten coupons, which are appropriately scored for easy tearing, advertising such wonderful bargains as a genuine top quality retractible ball point pen of the value of $1.69 for only 19 cents, if the "Lucky Calendar" householder presents the coupon at an Acme store and purchases, during the three-month period covered by the calendar, a four-ounce jar of Ideal brand instant coffee. In some instances the coupon holder need only present the coupon without making any other purchase in order to avail himself or herself of the bargain offered. It is of particular note that the items offered are of the type that have unusual appeal to the housewife.

The entire upper half of each sheet contains an explanation of the "Lucky Calendar Prize Contest," telling how the calendar holder has a chance to win "every month at every Acme super market" three wonderful prizes. Each month there is a first, second and third prize and these prizes are attractively pictured on the top half of the calendar sheet.

In the exhibit contained in the record the prizes are all Westinghouse appliances of the type desired by most modern housewives to ease her burden and add to her leisure time -- a portable dishwasher, an automatic clothes dryer, a television set, an electric roaster and cooker, a vacuum cleaner, a floor polisher and a clock radio. But we take judicial notice of the fact that the prizes are not in any way limited to this brand of manufacture or type of merchandise. In the contests presently being conducted in other counties of this State, such prizes as a mink stole, a set of dishes, a knife

sharpener and a meat slicer and, last but not least, a Cadillac automobile, are presently being offered and in due course delivered. Across the middle of each page separating the description of "Lucky Calendar Prize Contest" and the calendar and the eight or more coupons, is an alluring declaration in bold type that "This Acme Lucky Calendar is worth $69.19 to you in money saving coupons," the words "worth $69.19 to you" being printed in color.

In the upper right hand corner of each sheet is a conveniently perforated coupon with a place for the name, address and telephone number of the participant in the contest. By the instructions the Lucky Calendar recipient is directed to fill in the blank spaces provided with appropriate information, clip or tear out the coupon and "take it to your nearest Acme Super Market, and deposit it in the big Prize Contest Box" before a certain time limit. The coupon itself instructs him to "deposit this coupon in the big Prize Contest Box just inside the door of your favorite Acme Super Market," but it is stipulated that the householder is not required to deposit the contest coupon himself and that anyone may place it in the contest prize box for him, although nothing to this effect appears printed on either side of the calendar. There is no special number on the coupon and the recipient does not retain any receipt for his entry. At the time designated in the Lucky Calendar the winners are drawn in each store. The first coupon drawn wins the first prize, and so on in the order advertised. There is no requirement to buy anything and a person need not be present at the drawing in order to win. The names of the winners are not posted at the stores; the winners are notified by telephone or mail and the prize is delivered to the winner free of any charge.

On the reverse side of each calendar sheet is a complete explanation of the "Acme Lucky Calendar" and its use. It describes how

"Every participating ACME Supermarket will have its own complete set of prizes. So you see, you're not competing against the whole city -- but just your own neighborhood. That means a better chance of winning one of these valuable prizes."

It explains in glowing terms "how can you enter":

"It's easy! In the upper right hand corner of each calendar page is a prize contest coupon. You can detach this AT ANY TIME DURING THE MONTH. Fill in your name, address and telephone number, and deposit the coupon in the prize contest entry box just inside the door of your nearest ACME Supermarket. There's nothing to buy. You don't have to be present at the drawing to win. Names will be drawn on the first Saturday after the end of each month, and winners will be notified by phone or mail. Each month there is a new contest with a complete new set of prizes."

It also describes "how can you save money":

"On each calendar page there are eight or more special money-saving coupons redeemable on quality products you'll find in your ACME Supermarket. With the exception of the coupons for the NEW WONDER BOOK CYCLOPEDIA, you can use any of the other coupons on all three pages at any time during February, March and April. The ACME LUCKY CALENDAR coupons actually save you 53.5% of the retail price of reliable and guaranteed merchandise."

Although the calendar makes a point of stating "There's nothing to buy," the coupon must be deposited inside the door of the " nearest ACME Supermarket" and the coupon holder is urged in a starred paragraph:

"Look for special display of Acme Lucky Calendar coupon products!"

The obvious design of the entire Lucky Calendar, while it avoids saying so in so many words, is to get the calendar holder, by participating in the Lucky Calendar scheme, into the nearest Acme Supermarket for the purpose, of course, of increasing its sales.

The plan contemplates "saturation mailing"; the Lucky Calendar is delivered by post to each householder or family within the given market area. None of these calendars are distributed at the supermarkets or stores nor can anyone obtain a Lucky Calendar by requesting it at the Acme supermarket.

The Lucky Calendar promotional program insofar as it applied to that portion conducted in the Philadelphia metropolitan area appeared to be acceptable to the Post Office Department of the United States Government. A letter made part of the record indicates:

"According to your letter, 'The calendar will be mailed to persons whose names appear on a mailing list, such as one prepared from automobile registrations or they may be addressed to "Occupant" at various addresses in the Philadelphia metropolitan area. All calendars will be distributed in this manner. None will be distributed or otherwise "handed out" at the Acme Super-markets.'

You state further that the sponsor will advertise the prize drawings as part of its regular advertising program: 'These advertisements will explain the plan and will not state that winners must be present at the drawing in order to win the prizes.'

According to the rules there is no requirement that participant attend the drawing, and winners are to be notified by telephone or mail.

Matter relating to this plan appears to be acceptable for mailing insofar as Section 36.6 Postal Laws and Regulations of 1948, (18 U.S.C. 1302) is concerned, it being understood that there is to be no consideration furnished in order to receive a coupon or otherwise participate in the awarding of the prizes."

At the time of oral argument there was presented to the court a "Lucky Calendar" somewhat different in form from the one in the record. It has a contest coupon for every week for a period of 13 weeks instead of one a month for the period of three months. The participant is required to fill in the last line of a four-line jingle and then follow the same procedure as in the ...


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