consumers, or indirectly by combination sales. Gillette v. Two Guys from Harrison, supra; Texas Co. V. DiGaetano, supra; 1 Callmann, supra, p. 495.
Combination sales, while used as advertisement devices for consumer stimulation, nevertheless, effect a cut in the established fair trade price of the individual commodities so coupled, the very conduct prohibited of the retail dealers, and have been judicially regarded as an abandonment of the resale price maintenance system by the trademark owner, or producer. Gillette Co. v. Two Guys etc., supra. 1 Callman, supra, sec. 24.2(c)(3) pp. 482-483; sec. 24.3(c) pp. 491-499. Such manufacturer price-cutting has been declared to be an abandonment where the combination sale of fair trade articles is by separate manufacturers, Magazine Repeating Razor Co. v. Weissbard, 125 N.J.Eq. 593, 7 A.2d 411 (Chanc.1939); or where fair trade articles are combined irrespective of aggregate price, Bathasweet Corp. v. Weissbard, 128 N.J.Eq. 135, 15 A.2d 337 (Chanc.1940); or where only one of the combined articles has a fair trade fixed resale price, Frank Fischer Mdsg. Corp. v. Ritz Drug Co., 129 N.J.Eq. 105, 19 A.2d 454 (Chanc.1941). In Gillette, the combination sales involved both a packaging of two fair trade items, as well as a combination sale of a fair trade item with a non-fair trade item, with the economic effect of diminishing the fair trade prices of the component items, wherein it was held that such constituted an abandonment of those items sold below the fixed price under the resale price maintenance program. Justice Haneman observed 36 N.J. at page 350 of the opinion, 177 A.2d at page 559:
'It may be that a combination could be used without loss of the fair trade price on individual items if the producer employed a program whereby the retailers holding such individual items would plainly be protected against all economic loss with respect to them. No such program here existed and hence we need not explore that question. We must conclude that in the present case the fair traded price of the individual items was abandoned.'
It is difficult to perceive a difference between the instant case and Gillette on the question of combination sales and abandonment. The identical argument of promotional sales technique for a limited time was there advanced to no avail. This court, in the construction and application of the New Jersey statute, is constrained by the law declared by the New Jersey Supreme Court in Gillette.
The problems there alluded to, of maintaining the legislative Fair Trade philosophy for trade-mark and brand name commodities of the same general class in fair and open competition, and at the same time providing equitable remedies for infractions of legislative design occasioned by unfair competition, although in some instances attributable to awkward marketing techniques, are no less evident here. But courts cannot judiciously interfere with marketing structures by implying contractual limitations or reservations for well intentioned sales stimulation, or impute to the legislature the contemplation of exemptions not contained in a statute in derogation of the common law. The wisdom and adequacy of price level maintenance is for the legislature. Deviations from established price levels are matters peculiarly within the sphere of merchandising contracts and marketing agreements and techniques. However, such conduct must stand the test of the statute providing for fair trade, as well as that interdicting unfair competition. R.S. 56:4-5, 6, N.J.S.A.
While there appears to be no question of good faith on the part of plaintiff with respect to the combination sales in December, January, and February of 1961-1962, and currently, between September 1 and November 1, 1964, the end will not justify the means so employed within the law as declared in Gillette. Promotional techniques, however worthy, must be deployed within the complex network of the Fair Trade Resale Price Maintenance System as established in the market and as declared by law. And while it may be that subsequent to the combination sales of 1961-1962, plaintiff reestablished those items within the coverage of its Fair Trade program, and insisted upon a compliance therewith by defendant in April, 1963, we are confronted, nevertheless, with its current combination sale. Such a special sale is tantamount to an abandonment of those articles from its Fair Trade program under the holding of the Gillette case, and it is hereby so determined. Until such conduct of plaintiff is curtailed, and its program properly reactivated, it is not entitled to the relief sought in its present action. Whether such abandonment can be cured, as plaintiff intimates, by the mere amendment of fair trade price schedules without the approbation of permissive legislation within the Fair Trade Act itself, poses a proposition which this Court is not presently called upon to meet.
It may very well be that nationwide introductory offers and extensive promotional sales for consumer stimulation, whether by way of combination sales or other marketing techniques, are desirable as ultimately inuring to the benefit of producer, retailer, and consumer alike. Product promotion and 'huckstering' of a producers' wares are traditional practices as ancient as those of the Phoenician traders and as current as those of the Madison Avenue savants. It is inconceivable that our American economy is unable to accommodate such practices within legal Fair Trade structures. The resolution of such commercial dilemmas perhaps lies with legislation more realistically geared to such practices, as well as in the marketing ingenuity of the producers.
In conclusion, it seems fitting to incorporate the language of Judge Collester in United States Time Corp. v. Grand Union Co., 64 N.J.Super. 39, at page 50, 165 A.2d 310, at page 316 (Chanc.Div.1960):
'It is obvious to this court that to permit the defendant to continue to sell plaintiff's products at cut-rate prices may well have a chaotic effect upon retailers in New Jersey. Many undoubtedly will conclude that they have a green light to cut prices of plaintiff's products and a price-cutting war may well result. In such an event the plaintiff may suffer irreparable injury, not adequately compensable in damages. Such a situation is a well recognized ground for equitable intervention by preliminary injunction.' (citations omitted).
Plaintiff seeks to maintain its own Fair Trade Program within the State of New Jersey, as well as elsewhere. Once its own house is put in order, it can insist that retailers of its products conform to its established Fair Trade Program and, upon their failure to do so, invoke judicial relief.
For the reasons assigned, the request for grant of a permanent injuction is hereby denied, and the preliminary injunction heretofore issued is dissolved.
Counsel may submit an appropriate order.