author: SAROKIN, District Judge.

text:
    KIWANIS INTERNATIONAL, Plaintiff, v. RIDGEWOOD KIWANIS CLUB, Defendant, and Julie Fletcher, Additional Counterclaimant. KIWANIS CLUB OF RIDGEWOOD, INC. and Julie Fletcher, Plaintiffs, v. KIWANIS INTERNATIONAL, Defendants.
    Civ. A. Nos. 85-4306, 85-4483.
    United States District Court, D. New Jersey.
    Feb. 6, 1986.

      Hirsch, Newman, Simpson & Baer, Hack-ensack, N.J., for plaintiff.
    Orbe, Nugent & Collins, Ridgewood, N.J., for defendant; Barnes & Thornburg, Indianapolis, Ind., of counsel.
   OPINION

SAROKIN, District Judge.

INTRODUCTION

It is somewhat astonishing in the year 1985 to hear an officer of a well-known international organization (boasting more than 300,000 members) say that it is fine for women “to help make the pancakes” but not for them to be members of the organization sponsoring the sale of those pancakes. The issue squarely presented by this case is whether such a blatant and admitted sexist attitude, and the discriminatory membership policy arising from it, are entitled to the protection of a United States District Court. For Kiwanis International asks this court to enjoin a local chapter from using the Kiwanis name and logo solely because that local has admitted a woman into its ranks.

There can be no doubt that the right to free association permits certain groups to gather, organize and exclude from their midst anyone whom they choose, no matter how offensive or discriminatory the basis of such exclusion. However, that right of exclusion depends upon the nature of the organization, its size, its purposes, the method by which its members are selected, where and how it meets, the nature of the benefits, if any, that accrue from membership and any detriments from exclusion. As one moves along the spectrum from the purely private club or organization to the clearly public one, there comes a point where the state may declare that the individual’s right not to be excluded on discriminatory grounds overrides the group’s right to exclude and discriminate, no matter how strongly felt or clearly expressed that policy may be.

For the reasons hereinafter set forth, the court concludes that Kiwanis International is not entitled to the injunctive relief it seeks, because to grant such relief would condone, protect and encourage its avowed policy of discrimination against women in violation of the mandate of the New Jersey legislature. Whatever federally-based rights Kiwanis has to protect its trade name must be subject to the congruent state-based right of women not to be excluded from membership solely because of their sex.

FINDINGS OF FACT

Commencing on November 18, 1985, the court held a hearing in this matter which the parties have agreed to treat as a consolidated preliminary and final hearing on their opposing requests for injunctive relief. Upon its review of the testimony and evidence presented at that hearing, the court makes the following findings of fact:

I. Kiwanis International and its Service Marks

Kiwanis International is a non-profit corporation incorporated in Illinois with its headquarters in Indiana. The objectives of Kiwanis, as set out in its bylaws, are:

To give primacy to the human and spiritual, rather than to the material values of life.
To encourage the daily living of the Golden Rule in all human relationships.
To promote the adoption and the application of higher social, business and professional standards.
To develop, by precept and example, a more intelligent, aggressive, and serviceable citizenship.
To provide, through Kiwanis clubs, a practical means to form enduring friendships, to render altruistic service, and to build better communities.
To cooperate in creating and maintaining that sound public opinion and high idealism which make possible the increase of righteousness, justice, patriotism and good will.

(Plaintiff’s Exhibit 15, Kiwanis const., art. II). To these ends, the International charters, supervises and controls local clubs throughout the United States and the rest of the world. These local clubs currently number about 8,200 worldwide, and have a membership of about 313,000. Although a collateral benefit of Kiwanis membership is the enjoyment of other members’ company, the activities of Kiwanis are primarily civic and charitable, rather than social. Indeed, Kiwanis clubs in North America experience a sixty to seventy percent attrition rate in the first year for new members. (Testimony of Gilbert Zitzelsberger, 11/19/85 at 10). And while the precise scope of the locals’ activities is not defined in the International’s constitution or bylaws, those provisions place importance not on the social aspects of Kiwanis membership, but rather the community service projects and charity fund raisers to which the locals are expected to devote their primary energies. (Testimony of John P. Hansen, 11/18/85 at 59). During 1984, Kiwanians donated more than twenty-two million hours to community service projects and raised approximately forty-one million dollars. (Affidavit of Gilbert Zitzelsberger, 9/17/85 at 3).

Since its inception in 1915, Kiwanis has limited its membership to men. This limitation is now embodied in the International’s constitution (art. V, § 4(a)) and bylaws (art. II, § 2), which the locals are to follow as a condition to the retention of their charters (art. IV, § 2). The International has a number of other membership requirements, such as employment in a recognized trade or profession (testimony of Gilbert Zitzels-berger, 11/18/85 at 159), but none are such that women would be incapable of satisfying them. The issue of whether to admit women has been introduced at recent Kiwanis conventions, but has consistently been defeated by clear majorities of the delegates. (Testimony of Gilbert Zitzels-berger, 11/18/85, at 170). Women are active in the fund raising activities of the clubs, however, and are often present at club meetings as invited speakers and guests. (Id. at 166-69; testimony of John P. Hansen, 11/18/85 at 101). Women’s participation in Kiwanis activities has even been formalized through the vehicle of “Ki-wanianne” clubs, which consist principally of wives and widows of Kiwanis club members, but which may admit women not otherwise associated with Kiwanis. Kiwan-ianne clubs, which are sponsored and supervised by one or more local Kiwanis clubs, are permitted to use the Kiwanis name and service marks and to engage in the same service activities as the Kiwanis clubs with which they are affiliated, but their members may not vote or hold office in Kiwanis clubs. (Testimony of Gilbert Zitzelsberger, 11/19/85 at 11-15; affidavit of Stephen Lear, 10/15/85 at 4). Furthermore, Kiwanis sponsors Key clubs at the high school level and Circle K clubs at the college level, both of which are open to males and females. (Testimony of Gilbert Zitzelsberger, 11/19/85 at 11).

Kiwanis meetings are often held in public restaurants. Kiwanis has no secret rituals or meetings, and engages in no activities in which the presence of women would create uncomfortable or embarrassing situations. Indeed, since the formal objectives of Kiwanis are in no way sex-specific (testimony of John P. Hansen, 11/18/85 at 101), and since women already participate to such a significant degree in its activities (id.), their full membership will not adversely affect the camaraderie or the impede the achievement of any of the overall goals of the organization (id. at 107). Nor will the public’s estimation of Kiwanis be adversely affected by the membership of women. (Testimony of Gilbert Zitzelsberger, 11/18/85 at 178). Persons who would otherwise contribute will not cease doing so because women are members (id.).

The International owns four service marks relating to the Kiwanis name. The marks are used by local clubs primarily to promote their services activities, and are also used to attract new members and to identify the locals to members of other Kiwanis clubs. The use of the service marks is central to the success of the locals’ service and fund raising activities — indeed, to the locals’ continued existence — because those marks inspire public confidence in the activities being promoted. (Id., 11/18/85 at 177; affidavit of Stephen Lear, 10/15/85 at 6; testimony of Julie Fletcher, 11/18/85 at 150). Until 1985, locals were permitted use of the marks until their charters were suspended or revoked. In January of that year, however, the International amended its bylaws to provide that the locals possessed only a revocable, nonexclusive license to use the marks, and that such license would be automatically revoked on sixty days’ notice upon violation of any of the provisions of the constitution or bylaws.

II. The Ridgewood Club

In June of 1984, the Kiwanis Club of Ridgewood, New Jersey admitted a woman named Julie Fletcher. Ms. Fletcher is an art consultant, and therefore a member of a recognized trade or profession as required by the International’s membership rules. Furthermore, she is willing to attend meetings consistently, and to pray and say the pledge of allegiance at them. In sum, she meets all of the criteria for membership except for gender. She has made beneficial business contacts as a result of her membership. (Testimony of Julie Fletcher, 11/18/85 at 149).

Upon admitting Ms. Fletcher, the club submitted to the International a “New Member Add Form” and processing fee, which the International promptly returned. Then, on July 26, 1985, the Secretary of Kiwanis International sent a letter to the Ridgewood club, stating that “It has been brought to our attention that your club has recently admitted a female member and has thus failed to comply with the provisions of Article II, Section 2 of the Kiwanis International Bylaws.” The letter proceeded to notify the club that unless it cured the noncompliance in sixty days, its license to use the service marks would be revoked without further notification. When communications between counsel established that Ridgewood did not plan to eject Ms. Fletcher, the International filed this suit on September 3, 1985, claiming that Ridge-wood had forfeited its license to use the Kiwanis service marks, and seeking preliminary and permanent injunctions prohibiting Ridgewood from using those marks. On September 6, 1985 Ridgewood and Ms. Fletcher filed a suit in New Jersey Superi- or Court requesting an injunction prohibiting the International from revoking Ridge-wood’s license on the basis of Ms. Fletcher’s membership and a declaration that Ms. Fletcher is a bona fide member of Ridge-wood. The International removed that suit to this court on diversity grounds on September 12, 1985, and the parties agreed to a consolidation on September 23. The International has moved to have the complaint filed by Ridgewood and Ms. Fletcher dismissed for failure to state a claim upon which relief may be granted, and both parties have moved for the injunctive relief outlined in their respective complaints.

DISCUSSION

While the facts are largely undisputed, the parties have framed the legal issues in widely divergent terms. The International, on the one hand, casts it as a simple trademark infringement case, in which the court’s limited function is to recognize the validity of its trademark rights, declare Ridgewood’s infringement of them, and enjoin such further infringement. Fletcher and Ridgewood, on the other hand, assert that the trademark infringement action is merely a guise masking the real issue; namely, their claim that the International is engaging in illegal sex discrimination. Their disagreement complicates the court’s disposition to some extent, because the analysis to be employed differs depending on whether either claim is presented as a cause of action or a defense. This, however, is largely due to the somewhat confusing nature of the precedent defining the interaction between state and federal law as they relate to the claims herein, rather than to any ambiguity as to the outcome. For whatever analysis is employed, the result is the same: the International’s proprietary rights in its federal trademark are conditioned on Fletcher’s state-created right to be free of discrimination. This conclusion is demonstrated most clearly by treating these two consolidated suits as if they were brought independently. The court will therefore conduct an independent analysis first of Ridgewood and Fletcher’s discrimination claims as asserted in their complaint, and then it will do the same for the International’s trademark claim.

I. The Anti-discrimination Suit

The complaint filed by Ridgewood and Ms. Fletcher asserts that the International’s attempt to withdraw the use of its service marks constitutes unlawful sex discrimination in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq., as well as the New Jersey Constitution, art. I, ¶ 1, and their counterclaim alleges further that this court’s enforcement of such a discriminatory policy would constitute governmental action in violation of the equal protection provisions of the United States Constitution. Because the court finds the statutory claim a sufficient ground upon which to render a decision in this instance, it declines to address the constitutional claims.

The New Jersey Law Against Discrimination prohibits the operator of any “place of public accommodation” from denying the use of any of its “accommodations, advantages, facilities or privileges” on account of “race, creed, color, national origin, ancestry, marital status, sex or national!ty”, except, in the case of sex, where the place of public accommodation “is in its nature reasonably restricted exclusively to individuals of one sex.” N.J.S.A. 10:5-12(f); National Organization for Women v. Little League Baseball, 127 N.J.Super. 522, 527, 318 A.2d 33, aff'd mem., 67 N.J. 320, 338 A.2d 198 (1974). Fletcher and Ridgewood claim that the Kiwanis Club is a “place of public accommodation” within the meaning of that statute, and that any attempt to exclude women from it solely on the basis of their sex is therefore void for illegality. The International offers four arguments for rejecting this line of reasoning. First, the International claims that its attempt to enforce its trademark rights simply does not constitute sex discrimination. Second, it argues that Kiwanis does not come within the purview of the New Jersey Law Against Discrimination because that statute only applies to “places of public accommodation” which have spatial characteristics. Third, the International claims that Kiwanis is protected by the explicit exclusion for clubs that are “by their nature distinctly private”. And finally, the International claims that the New Jersey Law Against Discrimination is preempted because its application impedes the International’s free use of its federal trademark rights. The court will address each of these defenses in turn.

A. Discriminatory Intent

As for the International’s argument that its attempt to withdraw its trademark has nothing to do with sex discrimination, the court treats this as a matter of intent, and concludes that Ridgewood and Fletcher have the better of the argument. Although tactically impressive and creative, the International’s argument that it does not seek to force Ms. Fletcher’s ouster is totally disingenuous. In support of its argument for injunctive relief, Kiwanis urges the importance of its name and logo and what they have come to signify. By the International’s own assertions, it is evident that the chapter without the right to use the name ceases to be a chapter at all. Ridgewood does not require the permission of the International to operate as a separate or different club. The undisputed fact is that without the right to use the Kiwanis name, the chapter’s ability to function, survive and carry out its avowed purposes is or will shortly be at an end. The grand gesture by the International that the local can continue to be a renegade so long as it does not use the Kiwanis name is thus a gift box with nothing inside.

B. The Spatiality Requirement

The International’s next argument for nonapplication of the New Jersey Law Against Discrimination is that the statute only covers “places” that have predominately spatial characteristics. Because the court’s jurisdiction is based on diversity, its function is to predict what the New Jersey Supreme Court’s interpretation of this important statutory term would be. As an initial matter, the court looks to the definitional provision found in N.J.S.A. 10:5-5(Z), which is set out in the margin. Because that provision, though detailed, provides no dispositive answer to the question whether the term “place” is limited to spatial phenomena, the court looks next to the relevant pronouncements of the New Jersey-Supreme Court.

As a general matter, that court has established that the law is remedial and should be read with an approach sympathetic to its objectives. See Levitt & Sons, Inc. v. Division Against Discrimination, 31 N.J. 514, 524, 158 A.2d 177 (1960); Zahorian v. Russell Fitt Real Estate Agency, 62 N.J. 399, 409, 301 A.2d 754 (1973). More importantly, that court has expressly affirmed a decision by the Superior Court that “[t]he statutory noun ‘place’ is a term of convenience, not of limitation.” National Organization for Women v. Little League Baseball, 127 N.J.Super. 522, 530, 318 A.2d 33, aff'd mem., 67 N.J. 320, 338 A.2d 198 (1974). In that case, which was a suit against the Little League for denying girls the opportunity to participate in its activities, the Little League argued that the statute did not apply to “a membership organization which does not operate from any fixed parcel of real estate in New Jersey.” Id. at 530, 318 A.2d 33. The court rejected that argument, concluding that the “place” requirement was satisfied by a showing that Little League’s activities were primarily conducted in a public place; namely, the ball field “at which tryouts are arranged, instructions are given, practices held and games played.” Id. at 531, 318 A.2d 33.

Thus, as the Minnesota Supreme Court explained when adopting the New Jersey court’s holding to a fact pattern almost identical to the one now before this court, Little League stands for the proposition that “a ‘place of public accommodation or a facility’ is less a matter of whether the organization operates on a permanent site, and more a matter of whether the organization engages in activities in places to which an unselected public is given an open invitation.” United States Jaycees v. McClure, 305 N.W.2d 764, 773 (Minn.1981). Because Kiwanis conducts its meetings in just such places, — i.e., public restaurants — the court concludes that the New Jersey Supreme Court would be as prepared to find that the statutory “place” requirement has been met here as it was in Little League.

C. The Private Club Exception

With regard to the International’s claim that Kiwanis is expressly excluded from the statute’s coverage because it is a club “by its nature distinctly private”, the court notes first that the provision in question was added as part of a 1977 amendment by which the legislature established that, to the extent permissible, clubs generally were to be viewed as clearly within the statute’s purview. See Hinfey v. Matawan Regional Bd. of Educ., 77 N.J. 514, 523, 391 A.2d 899 (1978). It would thus be directly contrary to the legislature’s intent to exclude Kiwanis from the scope of the statute simply because it is a club. Rather, it is necessary to determine whether such a club is one that is so distinctly private that any interference in its admission policies would impinge on members’ freedom of association in a manner that contravenes the United States Constitution. It is to that issue that the court will now turn.

The United States Supreme Court has recently given significant guidance on the freedom of association issue in a case much like the one now before this court. In that case, Roberts v. United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984), the Court held that there is no violation of the freedom of association in a Minnesota anti-discrimination statute which prohibits the United States Jaycees from excluding women on the basis of sex. In reaching this conclusion, the Court noted first that the constitutional term “freedom of association” actually encompasses two distinguishable interests; the “freedom of intimate association” and the “freedom of expressive association”. Eschewing any rigid standard for invalidating a state anti-discrimination law that prohibits an organization from engaging in discriminatory admission practices, the Court explained that a number of factors are relevant to such a determination. This court evaluates the situation before it in light of those factors.

With regard to the constitutional right to intimate association, the Supreme Court explained that “because the Bill of Rights is designed to secure individual liberty, it must afford the formation and preservation of certain kinds of highly personal relationships a substantial measure of sanctuary from unjustified interference by the State.” Id. 468 U.S. —, 104 S.Ct. at 3250 (1984). The court then advanced a number of characteristics distinguishing such relationships, including “relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from others in critical aspects of the relationship.” Id. Thus, factors that might be relevant in identifying such a situation include, but are not limited to, “size, purpose, policies, selectivity, [and] congeniality.” Id.

Throughout the hearing in this matter, Kiwanis continually adverted to facts which suggested that its membership is highly selective and that members participate in the organization’s activities for reasons of camaraderie. Testimony indicated, for example, that Ridgewood has admitted no more than twenty members in the past ten years, and that individuals are not invited to join Kiwanis unless they are sponsored by someone who is already a member of the club. Furthermore, testimony established that ten of the twenty-eight members of Ridgewood Kiwanis have been with the club for more than twenty years. Finally, there exist a number of local membership requirements imposed in tandem with the International’s rules, such as a willingness to attend meetings consistently, a willingness to pray and say the pledge of allegiance at meetings, and membership in a recognized trade or profession.

A consideration of all the relevant aspects of the Kiwanis organization, however, shifts the balance in quite the opposite direction. As noted above, the organization in its entirety has 8,200 locals and a worldwide membership of 313,000, and Kiwanis clubs in North America experience a seventy-five percent attrition rate in the first year for new members. When viewed in such broad range, these characteristics fit ill with the concept of intimacy that the Court clearly intended to emphasize in Roberts. Furthermore, testimony established repeatedly that the primary function of is not to promote camaraderie among its members, but rather to perform charitable service to the community. While creating a sense of comradeship is certainly a secondary goal of Kiwanis, and while that goal is as laudable and significant in that organization as it is in any communal effort that individuals choose to undertake, it is not the sine qua non of Kiwanis’ existence. In any event, the ex-president of the Ridgewood Club testified that neither the comradeship of that club’s members nor the club’s overall charitable goals would be adversely affected in any way by the admission of women. This testimony was reinforced by evidence which established that the formal objectives of are in no way sex-specific, and that in clubs throughout the country women are often present at meetings and participate closely with the male members in the organization’s charitable activities. Indeed, the only activities from which women are apparently excluded are office-holding and participation in Kiwanis clubs’ primary decision-making processes. In light of all these factors, the court must conclude that Kiwanis lacks the distinctive indicia of intimate association that might afford constitutional protection to its members’ decision to exclude women. Roberts, 468 U.S. —, 104 S.Ct. at 3251.

Having so concluded, the court must next determine whether application of the New Jersey statute infringes on the male members’ related freedom of expressive association. As the Supreme Court explained in Roberts, the freedom to engage in collective activity is a necessary correlative to the freedom to speak, to worship, and to petition the Government for the redress of grievances, because membership in a group may not only be essential to the individual’s clarification and articulation of ideas different from those of the majority, but may also provide the necessary support for the continued expression of dissident ideas in the face of the majority’s disapproval. Id. at -, 104 S.Ct. at 3252. Indeed, because the strength of one’s voice is often dependent on the extent to which one believes it will be echoed by others of like mind, “there can be no clearer example [of an infringement of the freedom of expressive association] than a regulation that forces the group to accept members it does not desire.” Id. Nonetheless, countervailing concerns require that there be limits on the parameters of this particular constitutional protection. “Infringements on that right may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.” Id.

Like the Minnesota statute at issue in Jaycees, the New Jersey Law Against Discrimination reflects its state’s strong historical commitment to eliminating discrimination. See Fraser v. Robin Dee Day Camp, 44 N.J. 480, 485-86, 210 A.2d 208 (1965); Levitt & Sons v. Division Against Discrimination, 31 N.J. 514, 524, 158 A.2d 177 (1960). Such a concern is one that the Court has deemed a state interest “of the highest order.” Here, even more so than in Roberts, the issue at hand is one which has serious social and personal implications. For the matter to be determined is whether an organization which purports to — and indeed does — embody and encourage the most communitarian and charitable of social activities should be permitted to impart the message that simply because one is female she is rightfully prohibited from functioning as a decisionmaker of full stature in the structuring of such activities. This case epitomizes the kind of situation where “discrimination based on archaic and overbroad assumptions about the relative needs and capacities of the sexes forces individuals to labor under stereotypical notions that often bear no relationship to their actual abilities.” Roberts, 468 U.S. at -, 104 S.Ct. at 3253. The operation of such assumptions disserves both the individual who is the object of the discrimination by belittling her personal worth and dignity, and the society of which she is a part by denying it the benefit of her full contribution.

Thus viewing the nature of the harm sought to be prevented, the court next looks to whether New Jersey’s Law Against Discrimination has done so in a sufficiently nonrestrictive way. As noted above, the testimony in this case established repeatedly that women’s full participation in clubs as they exist today would do little to inhibit male members’ freedom to express themselves as they currently do, since women are already permitted to participate in almost all of the activities in which such expression may occur. As for the possibility that women may use their membership to influence the organization’s decisionmaking activities to institute a new agenda, the Supreme Court has made clear that absent some clear factual support, such an assertion is simply too speculative a ground on which to base a constitutional claim of the kind asserted here. Id. 104 S.Ct. at 3255. But even if such an abridgement of male-oriented expression could be found to occur, the legislation is no more invasive than necessary to promote the state’s legitimate goal of eliminating discriminatory exclusion from participation in civic and charitable causes and assuring the advantages which accrue from Kiwanis membership. Indeed, this court cannot conceive of any other means to afford women all of the benefits of Kiwanis membership — including the right to vote and hold office — than to require that they be permitted to be members.

The court thus concludes that the New Jersey Law Against Discrimination applies consistently with the constitutional precepts articulated by the Supreme Court to bar the discriminatory policies that Kiwanis seeks to enforce by its withdrawal of the Ridgewood service mark, and further finds that Kiwanis is a place of public accommodation under the statute predicated upon the findings of fact set forth above. This having been determined, the court turns finally to the argument advanced most vociferously by the International; that the New Jersey Law Against Discrimination must nonetheless be precluded from operating because the state’s legislated interest in so discouraging discrimination is preempted by the national interests embodied in the trademark laws.

D. International’s Preemption Defense

It is inevitable in any dual system of government that the laws issued by one of the two governing entities will from time to time come into conflict with those of the other. When such occurs in this nation’s federalist system, the supremacy clause, U.S. Const, art. VI, cl. 2, provides a simple resolution; federal law must preempt inconsistent state law. Application of this precept may, however, be somewhat less than simple in a given instance. On the one hand, the courts are to invalidate not only expressly conflicting state laws, but also those which more indirectly “stand[] as an obstacle to the accomplishment and execution of the full purposes and objective of Congress.” Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941), quoted in Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 141, 83 S.Ct. 1210, 1216, 10 L.Ed.2d 248 (1963). On the other hand, preemption doctrine is not to be applied so heavy-handedly as to deter the states from enacting all worthwhile legislation simply because it relates tangentially to some federal law. Indeed, because the states’ significant lawmaking authority cannot be preserved without a presumption “that Congress did not intend to displace state law,” Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 2129, 68 L.Ed.2d 576 (1981), preemption is disfavored “in the absence of persuasive reasons — either that the nature of the regulated subject matter permits no other conclusion, or that the Congress has unmistakably so ordained.” Chicago & North Western Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 317, 101 S.Ct. 1124, 1130, 67 L.Ed.2d 258 (1981); Florida Lime & Avocado Growers, supra, 373 U.S. at 142, 83 S.Ct. at 1217.

With these principles in mind, the court turns to the particular arguments on which the International bases its preemption claim. Unable to point to any direct conflict between the Lanham Act and the New Jersey Law Against Discrimination, the International argues that there is nonetheless preemption for two distinct reasons. First, it claims that Congress expressly articulated an intention to occupy the entire field of trademark law. Second, it argues that operation of the New Jersey Law Against Discrimination would effectively contravene the policies behind the trademark laws by permitting a confusing trademark to operate.

The International’s first argument may be disposed of in short order, for the Third Circuit expressly held in Marinello v. Shell Oil Co., 511 F.2d 853, 857 (3d Cir.1975), that Congress did not intend the Lanham Act to occupy the entire field of trademark law. Cf. National Organization for Women v. Little League Baseball, 127 N.J.Super. 522, 534, 318 A.2d 33, aff'd mem., 67 N.J. 320, 338 A.2d 198 (1974). Because the confusion argument was not directly presented in that case, the court will deal with it in more detail here. According to the International, operation of the New Jersey Law would require New Jersey Kiwanis clubs to admit women, thereby creating nonuniform admissions policies among the Kiwanis clubs of the various states. The consequence of this, the argument goes, will be bewilderment about the meaning of the Kiwanis mark in the mind of the public in general, and particularly for out-of-state Kiwanis members who pay visits (as is the practice) to a nondiscriminatory club. The answer to this argument is: nonsense!

Whatever surprise or confusion may exist can be easily dissipated in the first newsletter sent to members advising them of the results of this litigation. Furthermore, the suggested vision of a member visiting another chapter clutching his heart and gasping for air at the sight of a woman is pure fantasy. The evidence presented indicates that Kiwanis meetings are regularly held at public restaurants where women regularly dine. As this opinion has already noted, women are frequently in attendance as guests and speakers at the meetings themselves. Women regularly participate with members in fund raising activities, and there are no reported instances of any male members fainting as a result. Indeed, because women’s presence is already so pervasive, Kiwanis cannot point to a single traditional activity which will be impeded, harmed or conducted any differently by granting women full membership. The court therefore concludes that the danger of confusion which the International so fervently alleges is simply nonexistent.

Furthermore, even if some potential confusion about the nature of Kiwanis membership were to be created by application of the New Jersey Law Against Discrimination, the relative weight of the state and federal interests implicated here militates against a finding of preemption. See Florida Lime & Avocado Growers, 373 U.S. at 146, 83 S.Ct. at 1219. The Lanham Act does express, to be sure, a congressional design to promote national uniformity in the meaning of trademarks. See Marinello v. Shell Oil Co., 511 F.2d 853, 858 (3d Cir.1975). It is not the case, however, that this federal interest is triggered whenever a trademark or service mark owner is forced to modify its activities in some way to comply with state regulations. For Congress’ underlying interest was not in eliminating every tangential or gratuitous form of public confusion that might accrue to a registered service or product. Rather, its specific concerns were with “securing to the owner the good will of his business and protecting the public against spurious and falsely marked products.” S.Rep. No. 1333, 79th Cong.2d Sess. 1, reprinted in 1946 U.S.Code Cong.Serv. 1274. No actual threat to either of these congressional concerns exists here. First of all, testimony repeatedly established that any concern about public deception is misplaced here because the “service” being offered by Kiwanis — that is, its charitable activities— simply will not be altered in any way by the full membership of women. And as for Congress’ desire to protect the mark owner’s “reputation and good will id.,” testimony established that there exists no threat to such interests here since the public’s tendency to contribute to Kiwanis causes will not diminish by the induction of women. In sum, the particular confusion against which the International seeks so fervently to guard against is not one which implicates any significant federal concern.

Furthermore, the federal interest in uniformity of trademarks, such as it is, is tempered in this case by the fact that the private ends being sought are invidiously discriminatory. As the Supreme Court recently pointed out, “[ijnvidious private discrimination ... has never been accorded affirmative constitutional protection,” Hishon v. King & Spalding, 467 U.S. 69, 78, 104 S.Ct. 2229, 2235, 81 L.Ed.2d 59 (1984), and indeed Congress itself has acted to eliminate such discrimination in many aspects of private activity. See, e.g., Title VII of the Civil Rights Act of 1964, 78 Stat. 241, as amended, 42 U.S.C. §§ 2000e et seq. In addition, the Supreme Court has held that when the states choose to supplement federal anti-discrimination laws, the effects of the states’ efforts are not to be nullified by mere reference to “uniformity” in matters of federal concern such as interstate commerce. See Colorado Anti-discrimination Comm’n v. Continental Air Lines, 372 U.S. 714, 721, 83 S.Ct. 1022, 1025, 10 L.Ed.2d 84 (1963). In sum, it would do violence to the delicate balance of power struck by the supremacy clause to hold that the tangential federal interest in trademark uniformity preempts the principled state interest in eliminating discrimination which is at issue here. The court therefore rejects the International’s preemption defense and holds that any attempt on its part to enforce its discriminatory policies in New Jersey, including the revocation of its service mark license from nondiscriminatory clubs, violates the New Jersey Law Against Discrimination.

E. The Remedy

Having concluded that the International’s attempt to withdraw the use of its trademark violates the New Jersey Law Against Discrimination, the court must finally determine whether an injunction against the International is warranted. The court’s analysis establishes the illegality of the International’s enforcement of its discriminatory membership policies. The court therefore grants Ms. Fletcher and Ridgewood’s request for an injunction and declares that the International acted illegally by withdrawing the license of its service mark in an attempt to enforce its sexually discriminatory membership policies.

II. The International’s Trademark Suit

Having conducted the first part of its analysis in conformity with the allegations of the complaint asserted by Fletcher and Ridgewood, the court now evaluates the International’s trademark claim not as a preemption defense but rather as a cause of action for trademark infringement in the first instance. The International’s complaint alleges that once Ridgewood’s license to use the Kiwanis service marks was revoked on September 25, 1985, its continued use of those marks constituted an infringement of the marks in violation of the Lanham Act, 15 U.S.C. § 1114. The complaint further requests relief in the form of a declaratory judgment under 28 U.S.C. § 2201 and an injunction against Ridgewood’s continued use under 15 U.S.C. § 1116.

In order to prevail in a Lanham Act claim, a plaintiff must establish that it owns a validly registered and legally pro-tectible service mark which the defendant is using without consent and in a manner which is likely to cause confusion. 15 U.S.C. § 1114; United States Jaycees v. Philadelphia Jaycees, 639 F.2d 134, 137 (3d Cir.1981); Kinark Corp. v. Camelot, Inc., 548 F.Supp. 429, 441 (D.N.J.1982). The International claims, and Ridgewood does not dispute, that the International is the owner of the service marks in question, and that those marks are currently registered and uneontestable. Nonetheless, the analysis must once again expand to encompass the underlying issue of the International’s discriminatory motive. The point where it does so is the context of the statutory term “consent”, for as the court has noted above, the marks were until recently used pursuant to a licensing agreement, and the license was revoked as a direct result of Ridgewood’s refusal to comply with the International’s discriminatory policies. Ridgewood argues that a revocation of its license on such a ground is unenforceable because such agreements to discriminate are unlawful under the New Jersey Law Against Discrimination. The International maintains, however, that Ridgewood and Fletcher’s assertions as to the legal effect of New Jersey law as a defense to its trademark claim are untenable because state law simply does not apply to agreements to license federal trademark rights. Thus, the very determination of the parties’ relative rights with regard to use of the trademark in question depends in some degree on the applicability and effect of New Jersey’s anti-discrimination law.

A. The Applicability of State Law

It has long been recognized that it is appropriate to fill in the interstices in federal law by looking to the applicable legal principles of the states. See, e.g., De Sylva v. Ballentine, 351 U.S. 570, 580, 76 S.Ct. 974, 979, 100 L.Ed. 1415 (1956) (adopting state rules governing domestic relations in defining the term “children” in Copyright Act); Automobile Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 706, 86 S.Ct. 1107, 1113, 16 L.Ed.2d 192 (1966) (holding that state law defines statutes of limitations for breach of contract cases under federal labor law); Reconstruction Finance Corp. v. Beaver County, 328 U.S. 204, 66 S.Ct. 992, 90 L.Ed. 1172 (1945) (adopting state law definition of “real property” in interpreting Reconstruction Finance Corporation Act); American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260, 36 S.Ct. 585, 586, 60 L.Ed. 987 (1916) (finding that state law governs issue whether there has been slander of a patent); T.B. Harms Co. v. Eliscu, 339 F.2d 823, 827 (2d Cir.1964) (concluding that state law controls in actions to enforce or rescind assignments of copyrights); see also Jameson v. Bethlehem Steel Corp. Pension Plan, 765 F.2d 49, 52 (3d Cir.1985) (“[T]he fact that in deciding the federal cause of action the court is required to look to state law for the rule of decision is neither exceptional nor unusual.”). As the Supreme Court pointed out in De Sylva, reliance on state law is particularly appropriate when the federal law in the area is latent or nonexistent and when the issue is one so traditionally of state concern that state law is well developed and therefore easily discernible. Id. Reference to state law in such instances is born of the practical necessity which arises out of a federalist system in which the federal courts’ jurisdiction is primarily limited to matters relating to constitutional and federal statutory rights, while the state courts have primary responsibility for, and therefore expertise in, matters traditionally arising out of the common law. See Wallis v. Pan American Petroleum Corp., 384 U.S. 63, 68, 86 S.Ct. 1301, 1304, 16 L.Ed.2d 369 (1966) (quoting Hart & Wechsler, The Federal Courts and the Federal System 435 (1953) (“Congress acts ... against the background of the total corpus juris of the states.”). Contract law is certainly one of those areas in which the state courts have superior expertise. See Marinello v. Shell Oil Co., 511 F.2d 853, 858 (3d Cir.1975). Given that the terms of so typical a contract as a licensing agreement would easily be amenable to interpretation under state law, and given the fact that the Lan-ham Act does not by its terms give any direction as to the proper manner of interpreting such a contract, it would appear self-evident that the proper procedure would be to interpret that agreement by reference to state law. See Friendly, In Praise of Erie — And of the New Federal Common Law, 39 N.Y.U.L.Rev. 383, 410 (1964).

The International nonetheless argues that this court should ignore the well developed state law in this area and initiate the development of a federal common law (according to which its withdrawal of its license should be found permissible, of course) because to do otherwise would pose a significant threat to the federal interests embodied in the Lanham Act. Specifically, it claims that the uniformity of trademarked products and services which the Lanham Act seeks to protect would be subverted without a federal common law for trademark licenses. The unsoundness in this argument becomes apparent, however, once it is noted that in this very instance the “uniformity” which the International seeks to protect — the all-male quality of Kiwanis clubs — is nowhere apparent in the federal trademark register. Thus, that particular element of the Kiwanis marks’ meaning exists simply by reason of the mutual agreements between the International and the locals to condition the use of the service marks on the maintenance of discriminatory policies. Where the owner of a trademark engages in private lawmaking in the form of a contract, the terms of that contract will control, permitting a trademark to be privately leased or otherwise bargained away for reasons of mutual consent which have nothing whatsoever to do with the good will of the business originally embodied by the mark. See 1 J. McCarthy, Trademarks and Unfair Competition § 318.44 (1984). Once the definition of the trademark becomes so distinctly a matter of private negotiation, the federal interest in uniformity becomes so tangential that it would be ludicrous to require the creation of an entire body of federal rules in order to protect that interest. Since the court fails to perceive any persuasive justification for engendering a federal common law for trademark licenses, it concludes that New Jersey law applies to the parties’ dispute about whether the International’s revocation of the Kiwanis trademark licensing agreement was valid.

B. The New Jersey Law Against Discrimination

Having determined that New Jersey law applies as the rule of decision regarding the International’s revocation of its licensing agreement with Ridgewood, the court concludes further that New Jersey law requires it to decline to recognize the validity of that revocation. For as has been established by Part I of the analysis herein, one aspect of that state’s law — the New Jersey Law Against Discrimination— prohibits the discriminatory policies on which the licensing agreement is conditioned, and indeed on which the revocation is based. And New Jersey gives effect to its statutory prohibitions not only when they are presented as grounds for a cause of action, but also when they are asserted in order to invalidate private contracts which fail to comply with such prohibitions. See Shell Oil Co. v. Marinello, 63 N.J. 402, 307 A.2d 598 (1973), cert. denied, 415 U.S. 920, 94 S.Ct. 1421, 39 L.Ed.2d 475 (1974).

Having so concluded, the court must finally determine the legal effect to be given to a contract with such a flawed provision. Under basic contract principles, the court is presented with the option of voiding the entire licensing agreement or simply reforming it to exclude the repugnant provision. Because the service mark would continue to have essentially the same meaning if licensed under an agreement modified only by the deletion of the repugnant provision, the court concludes that such provision does not go to the heart of the contract and therefore chooses the less drastic option of reformation. The licensing agreement thus stands, absent the illegal provision, and the parties may continue to rely on the rest of its provisions for the proper rules regulating their conduct with regard to the use of the marks. Accordingly, the motions of Kiwanis to dismiss and for injunctive relief are denied.

Defendant-counterclaimant Ridgewood and counterclaimant Fletcher are directed to submit an order appropriate to this court’s holdings in Parts I and II of this opinion.

CONCLUSION

To suggest that this case involves solely the right of Kiwanis to protect its name and logo because of a violation of its constitution or bylaws is to ignore reality. What is truly at issue here is whether Kiwanis can, directly or indirectly, enforce its policy of discrimination against women with the imprimatur of this court. This opinion concludes that it cannot. Kiwanis’ trademark rights are subject to the right of women to be free of discrimination, as indeed they should be.

A membership sign of “Men Only” can be as offensive and repugnant as the sign “Whites Only”. Before this court exercises its equitable powers to enforce such a discriminatory policy, the need and justification for such a policy should be manifestly clear. The court does not mean to suggest by this opinion that there are no circumstances under which a group of men could form a private club or organization and exclude women. But anything which perpetuates and furthers discrimination against women contrary to state law should be carefully scrutinized, and sustained only when the particular and unique circumstances warrant. Here, and by this policy, the members of Kiwanis have excluded their own wives, daughters, sisters, mothers, and their business and professional colleagues. What is it that renders them all unsuited or unqualified to formally participate in the meetings, labors and good works of Kiwanis?

To permit women to become members of Kiwanis harms no one; to prohibit women from becoming members harms us all. The Kiwanis name will not suffer by their inclusion; indeed, it probably suffers more from their exclusion. The time has come, at least in New Jersey, for Kiwanis to permit women to do more than make pancakes.

      . Testimony of Gilbert Zitzelsberger, 11/18/85 at 168-69.

      . “A place of public accommodation" shall include, but not be limited to: any tavern, roadhouse, hotel, motel, trailer camp, summer camp, day camp, or resort camp, whether for entertainment of transient guests or accommodation of those seeking health, recreation or rest; any producer, manufacturer, wholesaler, distributor, retail shop, store, establishment, or concession dealing with goods or services of any kind; any restaurant, eating house, or place maintained for the sale of ice cream, ice and fruit preparations or their derivatives, soda water or confections, or where any beverages of any kind are retailed for consumption on the premises; any garage, any public conveyance operated on land or water, or in the air, any stations and terminals thereof; any bathhouse, boardwalk, or seashore accommodation; and auditorium, meeting place, or hall; any theatre, motion-picture house, music hall, roof garden, skating rink, swimming pool, amusement and recreation park, fair, bowling alley, gymnasium, shooting gallery, billiard and pool parlor, or other place of amusement; any comfort station; any dispensary, clinic or hospital; any public library; any kindergarten, primary and secondary school, trade or business school, high school, academy, college and university, or any educational institution under the supervision of the State Board of Education, or the Commissioner of Education of the State of New Jersey. Nothing herein contained shall be construed to include or to apply to any institution, bona fide club, or place of accommodation, which is in its nature distinctly private; nor shall anything herein contained apply to any educational facility operated or maintained by a bona fide religious or sectarian institution, and the right of a natural parent or one in loco parentis to direct the education and upbringing of a child under his control is hereby affirmed; nor shall anything herein contained be construed to bar any private secondary or post-secondary school from using in good faith criteria other than race, creed, color, national origin or ancestry, in the admission of students.

      . The International notes that a number of states’ highest courts have not followed the Minnesota court’s lead, and have instead concluded that their anti-discrimination laws do not prohibit the kind of discrimination that is engaged in by all-male clubs. See e.g., United States Jaycees v. Massachusetts Comm'n Against Discrimination, 463 N.E.2d 1151 (Mass.1984); United States Jaycees v. Bloomfield, 434 A.2d 1379 (D.C.App.1981); United States Jaycees v. Richardet, 666 P.2d 1008 (Alaska 1983). Given the New Jersey Supreme Court’s clear instruction to construe its antidiscrimination statute liberally, however, and given its affirmance of Little League, 67 N.J. 320, 338 A.2d 198 (1974), the court concludes that the Minnesota Supreme Court’s interpretation is more in keeping with the New Jersey court’s viewpoint.

      . Gilbert Zitzelsberger, the Secretary of Kiwanis International, did express the fear that if Kiwanis were required to take in women in the United States, it might lose a substantial portion of its membership in Europe. The court has made no findings of fact as to that claim, because it finds such a matter irrelevant to its disposition of the constitutional freedom of association issue at hand, and the fear was not supported by any competent evidence.

      . As the Third Circuit explained in Marinello, 511 F.2d at 858:
      [OJnce the state court has declared a clause invalid as violating the public policy of the state, a federal court may not enforce such a term solely because a contract entails the licensing of a federally protected trademark. Thus, Shell could not insert in its dealer agreement or lease a clause otherwise unenforceable under state law — such as a disclaimer of warranty, a forfeiture, or a usurious interest rate — and then assert a right to enforce such provision based on its status as a registered trademark owner. And this is so even though the freedom of a trademark holder to dictate the terms of its licensing arrangement would thereby be curtailed to some degree.

      . The International correctly points out that as owner of the service marks in question, it is normally master of their meaning. While such would indeed be the case if this dispute were merely a simple contract action, a more detailed evaluation of the actual threat of confusion, and the public harm that might flow from it, is in order when the claim is that a state’s law is the source of the confusion and therefore should be invalidated on supremacy clause grounds.

      . It is not contested that if state law applies, the governing law is that of New Jersey. See Mari-niello v. Shell Oil Co., 511 F.2d 853, 856 n. 15 (3d Cir.1975).

      . Federal trademark law does require that the owner of a trademark maintain some uniformity in the meaning of the mark, else it be rendered meaningless through dilution. Aside from this particular requirement, which is not implicated here because the service performed by Kiwanis will remain the same whether women are members or not, the terms of trademark licenses are essentially evaluated according to basic contract principles. 3 R. Callmann, Unfair Competition § 19.48 (1983); see, e.g., Parkway Baking Co. v. Freihofer Baking Co., 255 F.2d 641, 645 (3d Cir.1958); Vargas v. Esquire, Inc., 164 F.2d 522, 526 (7th Cir.1947).

      . The court finds no inconsistency between this conclusion and the holding in United States Jaycees v. Philadelphia Jaycees, 639 F.2d 134 (3d Cir.1981). In that case, the Third Circuit upheld the United States Jaycees’ right to an injunction against the use of its service marks by a local whose charter had been revoked five years beforehand because it had admitted women. First of all, the court’s analysis was premised on the initial determination that the license between the local and the National had long been terminated, and therefore that the matter of the National’s motive was no longer relevant. Thus accepting as given the validity of the revocation, the court limited its consideration to the likelihood of confusion and the existence of a secondary meaning in the local's continuing use of the marks. Here, by contrast, the evidence surrounding the termination of the license— particularly the International’s letter explicitly informing Ridgewood that termination would occur because of its decision to admit Fletcher — places the issue of the International’s intent squarely before this court. Secondly, whereas the defendant local in Philadelphia Jaycees failed to offer any persuasive legal justification for analyzing the National’s motives, Fletcher and Ridgewood present the court with a state anti-discrimination law which relates directly to that issue.

      . "... [W]e still wonder at the stolid incapacity of all men to understand that woman feels the invidious distinctions of sex exactly as the black man does those of color, or the white man the more transient distinctions of wealth, family, position, place and power; that she feels as keenly as man the injustice of disenfranchisement.” Elizabeth Cady Stanton, Susan B. Anthony, Mathilda Gage, History of Women Suffrage, Vol. I (1881).


source: Caselaw Access Project

author: OBERDORFER, District Judge.

license: Public Domain

text:
    AT & T INFORMATION SYSTEMS, INC., Plaintiff, v. GENERAL SERVICES ADMINISTRATION, Defendant.
    Civ. A. No. 85-1197.
    United States District Court, District of Columbia.
    Feb. 6, 1986.

      D. Michael Fitzhugh, Thomas A. Lem-mer, McKenna, Conner & Cuneo, Washington, D.C., for plaintiff.
    Michael L. Martinez, Asst. U.S. Atty., Washington, D.C., for defendant.
   MEMORANDUM

OBERDORFER, District Judge.

This matter first came before the Court when plaintiff AT & T Information Systems (“AT & T-IS”) filed its complaint for a declaratory judgment and preliminary and permanent injunctions. Plaintiff sought to prevent defendant General Services Administration (“GSA”) from releasing certain information that GSA had determined to release in response to Freedom of Information Act (“FOIA”) requests. The FOIA requests were made by a number of other entities not parties to this litigation and sought information relating to AT & T-IS’s successful bid for a GSA procurement contract. AT & T-IS claims that GSA’s decision to release the information over AT & T-IS’ protests was an abuse of discretion and not in accordance with law. AT & T-IS further claims that GSA should be permanently enjoined from releasing the contested information. Subsequent to the filing of the complaint, AT & T-IS and GSA filed cross motions for summary judgment and entered into a stipulation by which GSA agreed not to release the contested documents “until the Court decides the matter on motions for summary judgment.” Those cross motions are presently before the Court; all issues have been thoroughly briefed and argued. Both parties agree that the facts are not in dispute so that no special master or expert witness is needed and the motions are ripe for decision. See Defendant’s Supplemental Memorandum (filed September 9, 1985); Plaintiff’s Memorandum on the Question of Whether this Court May Resolve this Action on Motions for Summary Judgment (filed September 9, 1985).

I.

GSA recently commenced a nationwide purchase of a new federal telecommunications system. In all, twelve multi-city telecommunications systems will be procured in the “Aggregated Switch Procurement” (“ASP”) program, developed by GSA to competitively procure telecommunications systems for civilian federal government offices in different regions.

AT & T-IS bid for and, on March 1,1985, was awarded the New England area contract, the first in GSA’s ASP series. GSA had received four proposals in response to its April 27, 1983 Request for Proposals (“RFP”); as of January 30, 1985, AT & T-IS and GTE Communications Systems, Inc. (“GTE”) alone remained in the competitive range. Following the award of the contract to AT & T-IS on March 1, 1985, GTE on March 4, 1985 submitted a FOIA request to GSA, seeking the complete technical and price proposals submitted by AT & T-IS as well as certain internal documents generated by the agency during the procurement bid process.

On March 6, 1985, GSA notified AT & T-IS of GTE’s FOIA request. GSA sent AT & T-IS a copy of the request, and asked AT & T-IS to identify documents that it considered to be confidential and to provide explanation for the claim of confidentiality.

AT & T-IS responded on March 20 and March 28, 1985 to the GSA request and indicated, inter alia, that disclosure of AT & T-IS’ prices would reveal the company’s prices and discount strategy for this and future ASP contracts and that, consequently, release would cause AT & T-IS substantial competitive harm. From March 6 through early April, 1985, AT & T-IS personnel and counsel met with GSA personnel in an 'attempt to resolve the dispute over the information that GSA had been requested to release.

On April 9, 1985, GSA informed AT & T-IS by letter of the final disclosure determination made by Harry H. Fuchigami, Director of the Office of Information Resources Procurement, Office of Information Resources Management, General Services Administration. The April 9, 1985 letter from Mr. Fuchigami advised Mr. Harry Carr of AT & T-IS “that [GSA would] release a complete copy of [AT & T-IS’] proposal except those portions identified in the enclosed response to the reque-stor.” The letter further stated that “[i]n reaching [its] decision to release this information, [GSA had] carefully considered the comments in [AT & T-IS’] letters.”

GSA’s (per Fuchigami) rationale for withholding certain documents from the reque-stors was reflected in the April 9, 1985 letter to GTE, a copy of which was attached to the letter of the same date to AT & T-IS. In part, Mr. Fuchigami stated:

The information withheld under exemption (4) relates to the configuration of the switching system and the Switch Management Center (SMC), cost and financial data, company personnel, their qualifications, unique skills, educational background, and company past experience. Release of this data would reveal the contractor’s internal operations and business practices, thereby diminishing its competitve abilities. In addition, release could render future negotiations difficult if offerors became reluctant to furnish such information for fear of disclosure by the Government.

Letter from Harry H. Fuchigami to Stanford Miller, GTE Business Communications Systems, Inc. at 1 (April 9, 1985) (attached as Exhibit 3 to Defendant’s Memorandum) (emphasis added).

In all, GSA (per Fuchigami) determined to release 2707 pages of material responsive to the FOIA requests. Of the 2707 pages, AT & T-IS identifies approximately 32 pages, collected in six documents, that AT & T-IS maintains do contain confidential commercial or financial information. These six documents are the only documents at issue in this case and have been filed under seal with the Court. The six documents are as follows (detailed descriptions of these documents and their contents are found at pp. 9-13 of the Fuchigami Declaration).

(a) Schedule A — station equipment;
(b) Aggregate totals for the Switch Management Center (“SMC”) and for each system at each location;
(c) Life cycle raw cost summaries;
(d) “BARS” (Bid Analysis and Reporting System) system input and output;
(e) AT & T-IS’ January 30, 1985 letter containing its lease financing proposal; and
(f) Schedule D — service charges.

Three of these documents, [ (a) Schedule A, station equipment; (e) AT & T-IS’ January 30, 1985 letter containing its lease financing proposal; and (f) Schedule D, service charges] were contained in AT & T-IS’ proposal for the New England ASP contract. Two of the remaining three documents, [ (c) life cycle raw cost summaries; and (d) BARS system input and output], were generated by GSA during its evaluation of AT & T-IS’ proposal. The remaining document, [(b), containing aggregate totals for the SMC and for each system at each location], was generated by GSA after it had received the GTE FOIA request.

Mr. Fuchigami’s determination, reflected in his April 9 letters, that these six documents were subject to mandatory release under the FOIA was again expressed, with somewhat greater detail, in his June 19, 1985 Declaration. Providing specific explanations for his determination with respect to each of the individual documents, id. at 13-15, Mr. Fuchigami also stated:

I understand AT & T-IS to be arguing that disclosure of these unit prices would allow a competitor to calculate the discount from the commercial price which AT & T-IS offered the government for this contract and thus will enable a competitor to discern AT & T-IS pricing/discount strategy to its commercial detriment. However, it is also my understanding that a Government contract is a matter of public record and unit prices on a Government contract are generally re-leaseable. I believe the AT & T-IS argument to be speculative and on balance believe that public disclosure of these documents is required under the FOIA.

Id. at 4 ¶ 12. Mr. Fuchigami concluded: “I do not believe that release of these documents will directly or indirectly reveal trade secrets or confidential financial information as I understand the meaning of those phrases as used in the FOIA. Thus, I do not believe the release of these documents will cause AT & T-IS substantial competitive harm.” Id. at 15.

This suit followed the GSA’s April 9, 1985 announcement that it intended to release these documents.

II.

AT & T-IS contends that GSA’s determination to disclose the six documents in issue is an abuse of discretion and not in accordance with law because: (1) the Trade Secrets Act, 18 U.S.C. § 1905, prohibits disclosure of the information contained in these documents; (2) 5 U.S.C. § 552(b)(4) (“Exemption 4”) protects confidential commercial or financial information from mandatory disclosure under FOIA; and (3) the Federal Acquisition Regulation together with a balancing of interests requires the withholding of the commercial or financial information contained in the six documents in dispute. Plaintiff further contends that GSA’s decision to release this information is not in accordance with law because, pursuant to 5 U.S.C. § 552(b)(3) (“Exemption 3”) (in combination with the Trade Secrets Act), confidential commercial or financial information may not be released by GSA.

In general, defendant responds that the decision to release the information was reasonable and should not be overturned by the Court. Defendant contends that the information contained in the documents at issue is not protected from mandatory disclosure under the FOIA by the Trade Secrets Act or by Exemption 4 of the FOIA. Defendant further argues that the Federal Acquisition Regulation does not control the decisions at issue in this case. Finally, defendant contends that FOIA Exemption 3 does not provide an independent ground protecting the contested documents from mandatory disclosure.

III.

It is initially important to clarify the proper scope of judicial review of GSA’s decision. As an entity which has submitted information to the government, AT & T-IS may, pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706 (1982), challenge the agency’s decision to release information under the FOIA. Chrysler Corp. v. Brown, 441 U.S. 281, 99 S.Ct. 1705, 19 L.Ed.2d 208 (1979). AT & T-IS is entitled to relief under the APA if GSA’s decision to release the contested documents was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law or ... failed to meet statutory, procedural, or constitutional requirements.” NOW, Washington, D.C. Chapter v. Social Security Administration, 736 F.2d 727, 745 (D.C.Cir.1984) (per curiam) (McGowan and Mikva, JJ. separate opinion concurring in the result) (quotation marks and citations omitted). As our Court of Appeals has summarized:

[t]he “focal point for judicial review” in such cases “should be the administrative record already in existence, not some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142 [93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973)] (per curiam). See also United States v. Carlo Bianchi & Co. 373 U.S. 709, 715 [83 S.Ct. 1409, 1413, 10 L.Ed.2d 652 (1963)] (“in cases where Congress has simply provided for review, without setting forth the standards to be used or the procedures to be followed, ... consideration is to be confined to the administrative record and ... no de novo proceeding may be held”).

Id. As this Court stated in Canal Refining Co. v. Corrallo, 616 F.Supp. 1035, 1037 (D.D.C.1985) (appeal pending):

an information-submitter may seek to enjoin the disclosure of information that it has given to the agency, but such actions are limited to suits under the APA, and, except where a plaintiff can show that the agency's factfinding procedures are “severely defective” [citation omitted] the judicial role is limited to a review of the pre-existing administrative record.

See also Chrysler v. Brown, supra, 441 U.S. at 318, 99 S.Ct. at 1726 (“De novo review by the District Court is ordinarily not necessary to decide whether a contemplated disclosure runs afoul of [the Trade Secrets Act, 18 U.S.C.] § 1905”).

IV.

The rationale of GSA’s decision of April 9, 1985 is spelled out in the letters of that date to GTE and AT & T-IS, and in the June 19, 1985 declaration of its decision-maker, Harry H. Fuchigami. The April 9 letters and the 15 page Fuchigami Declaration are the core of the GSA decision here reviewed.

The Fuchigami Declaration is amply corroborated by letters that are part of the stipulated administrative record. Those letters indicate that Mr. Fuchigami contemporaneously considered the factors on which he relies in his June 19,1985 declaration, and that that declaration is not simply a post hoc rationalization that must be discounted by the Court. Compare Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 419-20, 91 S.Ct. 814, 825, 28 L.Ed.2d 136 (1971). In his April 9, 1985 letter to GTE, for example, Mr. Fuchi-gami indicated that certain documents would not be released to GTE because AT & T-IS had persuaded the agency that competitive harm would result to AT & T-IS from such disclosure. That letter, quoted supra at 1398, indicates that Mr. Fuchigami had evaluated AT & T-IS' claims with respect to the information GSA intended to release and made the determination that those claims were appropriately-made with regard to some documents but not others (including the six documents at issue in this litigation). These earlier statements, made contemporaneously with the determination to release the information, establish that the June 19 declaration was not a “post-hoc rationalization,” and, accordingly, is an appropriate element of the administrative record here.

That administrative record, the parties’ pleadings and oral arguments demonstrate that GSA’s factfinding procedures were not “severely defective,” and the agency’s determination to release the contested information was not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law [and did not fail] to meet statutory, procedural, or constitutional requirements.” See NOW, supra, 736 F.2d at 745. Accordingly, the accompanying order will grant defendant’s motion for summary judgment.

A.

Both plaintiff and defendant recognize that the Trade Secrets Act and Exemption 4 to the FOIA are co-extensive. Thus, if the information contained in the six documents at issue is protected from mandatory disclosure under FOIA by Exemption 4, GSA’s release of those documents would not be in accordance with 18 U.S.C. § 1905. Conversely, if the information is not protected from mandatory disclosure under FOIA by Exemption 4, 18 U.S.C. § 1905 should not prohibit its release.

FOIA exemption 4 protects from mandatory disclosure “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” 5 U.S.C. § 552(b)(4). The parties do not dispute that the information in the six documents in issue is commercial or financial information “obtained from a person,” and AT & T-IS makes no claim of privilege. The only issue remaining under Exemption 4, therefore, is whether the information is confidential. See Plaintiff's Memorandum at 15; Defendant’s Memorandum at 9.

Our Court of Appeals has clarified that: commercial or financial matter is “confidential” for purposes of [Exemption 4] if disclosure of the information is likely to have either of the following effects: (1) to impair the Government’s ability to obtain necessary information in the future; [footnote omitted] or (2) to cause substantial harm to the competitive position of the person from whom the information was obtained.

National Parks and Conservation Association v. Morton, 498 F.2d 765, 770 (D.C.Cir.1974).

The first prong of the test does not apply as GSA, by deciding to release the information, necessarily made the determination that disclosure will not impair its ability to obtain information in the future. “The agency is in the best position to determine the effect of disclosure on its ability to obtain necessary technical information.” Orion Research, Inc. v. Environmental Protection Agency, 615 F.2d 551, 554 (1st Cir.1980), cert. denied, 449 U.S. 833, 101 S.Ct. 103, 66 L.Ed.2d 38 (1980).

As to the second prong of the test, our Court of Appeals has indicated that “[i]n order to show the likelihood of substantial competitive harm, it is not necessary to show actual competitive harm. Actual competition and the likelihood of substantial competitive injury is all that need be shown.” Gulf & Western Industries, Inc., v. United States, 615 F.2d 527, 530 (D.C.Cir.1979). Plaintiff in its Memorandum also suggests that Gulf and Western sets out a third test for substantial competitive injury: “[when] the information to be released is of the type not usually made available to the public by the submitter of the information.” Plaintiff’s Memorandum at 16 (emphasis added), further citing National Parks, supra, 498 F.2d at 766-67.

The requirement that AT & T-IS demonstrate that it faces actual competition seems satisfied by the fact that no less than eight of its competitors have sought the disputed information by way of FOIA requests. What remains is really the crux of this case — the likelihood of substantial competitive injury to AT & T-IS upon release of the information in dispute. The Court of Appeals has noted that:

[cjonclusory and generalized allegations are indeed unacceptable as a means of sustaining the burden of non-disclosure under the FOIA, since such allegations necessarily elude the beneficial scrutiny of adversary proceedings, prevent adequate appellate review and generally frustrate the fair assertion of rights under the act.”

National Parks and Conservation Association v. Kleppe, 547 F.2d 673, 680 (D.C.Cir.1976). AT & T-IS, which by this reverse-FOIA action seeks to justify non-disclosure, has met this requirement by submitting detailed explanations for its conclusion that release of this information could inure to its competitors’ benefit and result in substantial competitive injury to the company. See Plaintiff’s Memorandum at 17-36. GSA argues in opposition that AT & T-IS’ suggestions of competitive injury are speculative and conclusory. Defendant’s Memorandum at 13-18. Given the limited scope of the Court’s review, the matter hinges on the following question: was the GSA’s determination that the information is properly released (i.e. disclosure does not present a likelihood of substantial competitive injury) arbitrary, capricious or an abuse of discretion?

Plaintiff makes plausible arguments for its claim that competitive injury may result from disclosure. Defendant proffers, per contra, the carefully reasoned opinion of Mr. Fuchigami that the predictions of competitive injury were too speculative to be countenanced.

Mr. Fuchigami has for four and one-half years been Director of the Office of Information Resources Procurement, Office of Information Resources Management (OIRM), General Services Administration. Before coming to GSA, Mr. Fuchigami was Principal Assistant for Automatic Data Processing Procurement to the Office of the Army Chief of Staff and then was head of Logistics Resources Management, Pacific Command for the Army. Mr. Fuchigami has a Master of Science Degree in Management Science, specializing in procurement and contracting.

Mr. Fuchigami’s declaration, confirmed by the administrative record, indicates that he reviewed, discussed with staff and counsel, and carefully evaluated AT & TIS’ objections to disclosure, and indeed, honored those objections with respect to many documents. His conclusion that release of the documents here in dispute did not present a likelihood of substantial competitive injury is amply supported by the record and undisputed facts. As Mr. Fu-chigami recited in support of his determination and plaintiff does not persuasively dispute, future ASP contracts will not contain the switch management center included in the New England contract, and will differ significantly as to local conditions and requirements and applicable tariff rates. Mr. Fuchigami reasonably concluded that these factors would undercut competitors’ ability to use the released information against AT & T-IS in future bids. Cf. J.H. Lawrence Co. v. Smith, Civil Action Nos. 81-2993, 82-0361, slip op. (D.Md. November 10, 1982) (releasing unit pricing information for one of a series of contracts when significant contract variables would undercut competitors’ ability to use the information to competitive advantage). Moreover, and significantly, AT & T-IS’ counsel did not at oral argument dispute that GSA could in the future purchase the units through individual buys, rather than in the aggregate— and that the prevailing bid price for the unit would be released as a matter of course. Under these circumstances, it cannot be said that GSA’s determination (per Mr. Fuchigami) to release the information was arbitrary and capricious. To paraphrase the Court of Appeals for the 11th Circuit, if, after APA review, agency action is found to be inappropriately characterized as arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law or unsupported by substantial evidence in the record, “the reviewing court cannot reverse the findings of the agency on the basis that it would have decided [or might have felt justified in deciding] the case differently.” Home Health Services of the U.S., Inc. v. Schweiker, 683 F.2d 353, 357 (11th Cir.1982).

In addition, defendant correctly notes that a factor to be considered is whether or not the information is customarily released to the public. There is a strong public interest in release of component and aggregate prices in Government contract awards, and

[disclosure of prices charged the Government is a cost of doing business with the Government. It is unlikely that companies will stop competing for Government contracts if the prices contracted for are disclosed.... Adequate information enables the public to evaluate the wisdom and efficiency of federal programs and expenditures.

Racal-Milgo Government Systems, Inc. v. Small Business Administration, 559 F.Supp. 4, 6 (D.D.C.1981); see also J.H. Lawrence Co. v. Smith, supra; Federal Acquisition Regulation, 48 C.F.R. § 15.-1001(c)(1)(iv) (1984) (emphasis added) (contracting officer shall, once contract has been awarded, notify unsuccessful offer-ors, such notice to include “items, quantities and unit prices of each award”). Mr. Fuchigami’s declaration reveals that he acted on these principles and the more general principle that the FOIA presumes release of requested documents absent compelling demonstration that information falls within the ambit of an FOIA exemption.

As to plaintiff’s contention that the customary release of similar information by GSA is immaterial and that the customary public release (or, as here, wow-release) by the submitter of the information should be determinative, our Court of Appeals has stated that:

[w]hether particular information would customarily be disclosed to the public by the person from whom it was obtained is not the only relevant inquiry in determining whether that information is “confidential” for purposes of § 552(b)(4). A court must also be satisfied that non-disclosure is justified by the legislative purpose which underlies the exemption.

National Parks, supra, 498 F.2d at 767. Here the Court is not satisfied that “nondisclosure is justified by the legislative purpose which underlies the exemption;” neither party disputes that disclosure of prices in a successful government contract bid is customary, and Congress could not reasonably have intended otherwise by Exemption 4.

In short, GSA did not act arbitrarily and capriciously in determining that release of the contested documents posed no substantial likelihood of competitive injury to AT & T-IS, and that the information thus was not “confidential information” protected from mandatory disclosure by FOIA Exemption 4.

B.

In view of the conclusion that FOIA Exemption 4 does not operate to protect the disputed documents from mandatory disclosure, it is unnecessary to belabor plaintiff’s contention that the Federal Acquisition Regulation (“FAR”) prohibits GSA’s discretionary disclosure of the materials. The FAR at 48 C.F.R. § 15.1001 permits contracting officers to furnish unsuccessful offerors with notices regarding the award of a contract. Although such notices may include information regarding the contract awarded, “[i]n no event shall an offeror’s cost breakdown, profit, overhead rates, trade secrets, manufacturing processes and techniques, or other confidential business information be disclosed to any other offeror.” FAR § 15.1001(c)(l)(v) (1984). The regulation states that: “[d]ebriefing [of unsuccessful bidders] shall not reveal any information that is not releasible under the Freedom of Information Act.” FAR § 15.1003(b) as amended 50 Fed.Reg. 1741 (January 11, 1985). Conversely, since, as here determined, the information at issue is not protected from mandatory disclosure under FOIA, § 15.-1003(b) does not preclude disclosure of the information by the defendant. See also FAR § 15.1001(c)(l)(iv), indicating that disclosure of unit prices, as well as total contract price, is customary.

C.

Finally, it is necessary to briefly consider plaintiff’s alternative argument that FOIA Exemption 3, in combination with the Trade Secrets Act, protects the contested documents from mandatory disclosure. Documents are, under Exemption 3, protected from mandatory disclosure when they are: “specifically exempted from disclosure by statute ... provided that such statute (A) requires that the matter be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3) (1982). Plaintiff contends that the question of whether the Trade Secrets Act is such an Exemption 3 statute has not been resolved in this jurisdiction.

Our Court of Appeals has stated that: in our view ... the third exemption “does not incorporate section 1905 into the FOIA in such a way as to make section 1905 broader than the fourth exemption.” [citation omitted], The third exemption requires that matters be “specifically exempted from disclosure by statute” [citation omitted] yet section 1905 by its own terms is a statute of general applicability and not one that specifically defines or categorizes the information to be exempted within the meaning of the third exemption.

National Parks II, supra, 547 F.2d at 686. See also CNA Financial Corp. v. Donovan, 2 GDS (P-H) ¶82,107 (D.D.C.1981).

Plaintiff cites Worthington Compressors Inc. v. Costle, 662 F.2d 45 (D.C.Cir.1981), however, in which the Court cited the Supreme Court’s decision in Consumer Product Safety Commission v. GTE Sylvania, 447 U.S. 102, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980) and stated that

[i]f [on remand] the district court finds that Exemption 4 is applicable to the information in this case, it will not have to rule on appellants’ Exemption 3 claims. If, however, the court finds Exemption 4 to be inapplicable, it should proceed to determine whether the Trade Secrets Act ... is a withholding statute.

Worthington Compressors, Inc., 662 F.2d at 55-56.

In short, it may be as plaintiff suggests, that the question of whether the Trade Secrets Act is an Exemption 3 statute remains open in this jurisdiction. Under the circumstances of this case, however, Exemption 3 can provide plaintiff no relief where it has been determined that Exemption 4 is inapplicable. As noted by the Court of Appeals in Worthington Compressors,

if Exemption 4 does not apply and if § 1905 is construed to be broader than Exemption 4 so as to apply to the information, FOIA may provide the necessary “authorization by law” to satisfy § 1905. (In Chrysler Corp., the Supreme Court called this a “theoretical possibility” that “is at most of limited practical signifi-canee in view of the similarity of language between Exemption 4 and the substantive provisions of § 1905.” [citation omitted] ... The real test of the relationship between Exemption 4 and § 1905 will come where, unlike here, an agency’s regulations permit it to disclose information even where Exemption 4 is applicable. In such a case, the issues would be raised whether the Trade Secrets Act also applied and, if so, whether disclosure was authorized by law within the meaning of § 1905.

Id. at 55 n. 59 (emphasis added). Here, by contrast, Exemption 4 has been determined to be inapplicable. Moreover, the parties agree that Exemption 4 and section 1905 of the Trade Secrets Act are eo-extensive. Accordingly, the determination that Exemption 4 is inapplicable compels as well the conclusion that section 1905 of the Trade Secrets Act is inapplicable. Thus, under these circumstances, section 1905 cannot by joinder with FOIA Exemption 3 protect from mandatory disclosure information that has been determined to be without Exemption 4 protection.

For all of these reasons, the accompanying order will grant defendant’s motion for summary judgment and deny plaintiffs cross motion for summary judgment.

      . At the time of filing of defendant’s motion for summary judgment, GSA had received FOIA requests relating to the information at issue in this case from eight different companies, competitors of AT & T-IS.

      . The stipulation also recited the parties’ agreement that the Court’s decision in this case will be determinative of GSA's right to release the documents in issue to all of the entities requesting their release.

      .Proposals for the second ASP procurement, a procurement for the Midwest, were originally due July 11, 1985. The remaining ASP procurements should be negotiated and awarded by approximately the fall of 1987. The contract value for all ASP procurements is estimated to exceed $1 billion. Declaration of Martin B. Wangberg ("Wangberg Decl.”) at ¶ 2 (filed April 16, 1985) (attached as Exhibit 1 to Plaintiffs Motion for a Preliminary Injunction (filed April 16, 1985).

      . A copy of this letter is attached as Exhibit 3 to the Memorandum of Points and Authorities in Support of Defendant’s Motion for Summary Judgment and in Opposition to Plaintiff's Motion for Preliminary Injunction (filed June 25, 1985) ("Defendant’s Memorandum”). Also attached is the Declaration of Harry H. Fuchigami ("Fuchigami Declaration") (June 19, 1985).

      . Wangberg Decl. ¶ 5; Fuchigami Decl. ¶ 9. Defendant in its statement of material facts not in dispute, ¶ 13, described this last document as "solely generated by GSA for the purpose of analyzing the AT & T-IS proposal.” This description seems controverted by the Fuchigami Decl. at ¶ 36b, which states that "[t]hese documents were created as a substitute for the portions of Schedule A (switching equipment and switch management center) which are being withheld as proprietary,” and ¶31, which states that they were "generated in response to the FOIA request as a substitute for the information being withheld on Schedule A.”

      . The pertinent part of this statute prohibits, unless authorized by law, the disclosure of information relating to "trade secrets, processes, operations, style of work or apparatus, or to the identity, confidential statistical data, amount or source of any income, profits, losses or expenditures of any person, firm, partnership, corporation, or association _” 18 U.S.C. § 1905.

      . See Plaintiffs Memorandum in Support of its Cross-Motion for Summary Judgment and in Opposition to Defendant’s Motion for Summary Judgment (“Plaintiffs Memorandum”) at 14-15 (filed July 25, 1985).

      . See Defendant’s Memorandum at 9.

      . Defendant convincingly argues, and plaintiff does not appear to contest, that our Court of Appeals has adopted a narrow definition of the term "trade secrets” in FOIA Exemption 4. See Public Citizen Health Research Group v. FDA, 704 F.2d 1280, 1288 (D.C.Cir.1983) (”[W]e define trade secret, solely for the purpose of FOIA Exemption 4, as a secret, commercially valuable plan, formula, process, or device that is used for the making, preparing, compounding or processing of trade commodities and that can be said to be the end product of either innovation or substantial effort”). The parties appear to agree that this narrow definition would exclude the pricing information that AT & T-IS seeks to prevent GSA from disclosing. See Defendant’s Memorandum at 10-12; Plaintiffs Memorandum at 15. The fact that this information does not constitute a trade secret under this Circuit’s interpretation of that term in FOIA Exemption 4, however, does not finally resolve the issue of Exemption 4 application. Such information may nevertheless be protected from disclosure if it is commercial or financial information that is confidential.

      . See, e.g., Letter from Harry H. Fuchigami to Stanford Miller (April 9, 1985), Exhibit 3 to Defendant’s Memorandum.