Full opinion text
OPINION LATCHUM, District Judge. This is a civil antitrust action brought by N. W. Controls, Inc. (“N.W.”) against the Outboard Marine Corporation (“0. M.C.”). The plaintiff, N. W., is a Pennsylvania corporation with its principal place of business at Vernfield, Pennsylvania. It manufactures and sells remote control cables and control boxes for use on outboard and stern drive boat engines, snowmobiles, and other products. The defendant, O. M. C., is a diversified manufacturing company which produces outboard and stern drive boat motors and accessories, lawn mowers, golf carts, chain saws, snowmobiles and other products. Its principal marine products are Evinrude and Johnson outboard motors, O.M.C. stern drive units, and Gale marine accessories. O.M.C. is a Delaware corporation with its principal marine manufacturing facilities at Waukegan, Illinois, Milwaukee, Wisconsin, and Galesburg, Illinois. N.W. alleges that O.M.C. has violated Section 1 of the Sherman AntiTrust Act (“Sherman Act”), 15 U.S.C. § 1, and Section 3 of the Clayton Act, 15 U.S.C. § 14, by tying the sale of its brand of outboard and stern drive remote control cables and control boxes to the sale of its electric gear shift equipped outboard and stern drive engines. N.W. further charges that O.M.C. illegally tied the sale of its control boxes to the sale of its mechanical shift outboard engines by applying coercive pressure upon its engine dealers in violation of Section 1 of the Sherman Act and Section 3 of the Clayton Act. N.W. also alleges that O. M.C. has violated Section 2 of the Sherman Act, 15 U.S.C. § 2, by refusing to deal with N.W., as a supplier, in its purchases of remote control cables, by engaging in predatory price manipulation in the remote control cable market, and by setting up a competitor to N.W. in an effort to injure N.W. during the pendency of the present lawsuit. N.W. seeks treble damages, pursuant to Section 4 of the Clayton Act, 15 U.S.C. § 15, and permanent injunctive relief, pursuant to Section 16 of the Clayton Act, 15 U.S.C. § 26. Jurisdiction exists in this Court by virtue of 28 U.S.C. § 1337 and venue is properly laid in this district under 28 U.S.C. § 1391, 15 U.S.C. § 15 and 15 U.S.C. § 22. In order to fully understand the main contentions made, a brief background is necessary. Outboard motors were originally one or two cylinder engines of small horsepower which were mounted on the transom of small fishing boats. The development of the modern outboard motor dates from the 1922 entry of the Johnson Motor Company (formerly Johnson Motor Wheel Company, a manufacturer of bicycle engines) into the outboard motor field. (Tr. 1111). Outboard motors became lighter, higher powered, better balanced and more portable. (Tr. 1115.) Around 1930 electric starters were introduced. (Tr. 1116.) In 1948 mechanical gear shifts were placed on outboards. (Tr. 1117.) In 1958 multiple cylinder engines came on the market. (Tr. 1117.) Since that time horsepower has been increased until today outboards in excess of 100 horsepower are available. In the early models, and today with smaller horsepower engines, all control functions (steering, throttling, and, after its introduction, gear shifting) were all performed by the operator seated at the rear of the boat next to the motor. However, as boats and motors became larger, it became more difficult and dangerous to operate the boat seated next to the motor. Remote control stations began to be used. These remote control stations contained a steering wheel and remote control box with levers which controlled throttling and gear shifting functions. The controls at the remote station were connected to the motor by means of flexible remote control cables. For throttling and mechanical gear shifting, the two engine control functions, the control cables consist of elongated flexible conduits containing freely moving core wires. Specially configured end fittings attach to mated fittings at the motor and control box end. At first, two control cables, one for the mechanical shift and one for the throttle, were run from the motor to a control box and there attached to two separate levers, appropriately designated for the shift and throttle. In the early 1960’s, single lever control boxes, capable of mechanically controlling both the throttle and gear shift operation by means of one single lever, were developed. However, two separate control cables were still needed, one for the throttle and one for the mechanical shift. In the 1962 model year, which began in the fall of 1961, O.M.C. introduced the first outboard engines with electrically operated gear shift. At about the same time, O.M.C. introduced its first stern drive units. All O.M.C. stern drives have been equipped with electric shift. For these outboard and stern drive engines, gear shifting is done by means of an electric solenoid operated clutch. Shifting is done by an electric switch on the control box, linked to the engine’s shift mechanism through a harness of wires which plugs into the engine. The throttle, however, is still operated mechanically by means of a remote control cable attached to a single lever on the control box. With the advent of electric shift engines, O.M.C. began the policy of including, as part of its outboard or stern drive engine “package,” remote control cables and control boxes. For stern drive units the cables and boxes were packed with the motor in the shipment. Remote control boxes were also packed with Johnson and Evinrude outboard engines. In addition, purchasers of electric shift outboard motors received, with their motor and control box, a “cable certificate” which entitled them to obtain from their dealer one O.M.C. control cable of whatever length was necessary to fit the boat. This new policy with regard to remote control cables and control boxes constitues the major focus of N.W.’s claims. The motion of N.W. for a preliminary injunction was denied by this Court on October 6, 1970. 317 F.Supp. 698. After one postponement, trial was commenced on March 1, 1971. The non-jury trial consumed thirteen trial days between March 1 and March 17. Post-trial briefing having been concluded, the case is now ripe for determination. Each of the major issues will be dealt with separately. I. TIE-IN SALES OF REMOTE CONTROL CABLES WITH ELECTRIC SHIFT ENGINES. N.W. has charged that O.M.C. violated Section 1 of the Sherman Act, 15 U.S.C. § 1, and Section 3 of the Clayton Act, 15 U.S.C. § 14, by tying the sale of its O-style cables to the sale of its electric shift outboard and stern drive engines. A tie-in is generally defined as an arrangement under which the vendor will sell one product (the tying product) only on condition that the buyer also purchase another and different product (the tied product). A successful tie-in thus has two anticompetitive impacts. It forecloses the seller’s competitors in one market (the tied market) through use of market leverage and power developed in another market (the tying market), and it compels a purchaser to buy a product he may not want in order to obtain one he desires. Northern Pacific Ry. v. United States, 356 U.S. 1, 5-6, 78 S.Ct. 514, 2 L.Ed.2d 545 (1958). Such tie-in sales can rarely be justified because it is said they “serve hardly any purpose beyond the suppression of competition.” Standard Oil Co. v. United States, 337 U.S. 293, 305-306, 69 S.Ct. 1051, 1058, 93 L.Ed. 1371 (1949). Accordingly, tie-in sales are almost always regarded as illegal- under both Section 3 of the Clayton Act and Section 1 of the Sherman Act. Northern Pacific Ry. v. United States, 356 U.S. 1, 78 S.Ct. 514, 2 L.Ed.2d 545 (1958) (§ 1); International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20 (1947) (§§ 1 and 3); International Business Machine Corp. v. United States, 298 U.S. 131, 56 S.Ct. 701, 80 L.Ed. 1085 (1936) (§ 3). The standard of illegality under the two Acts is not identical. If the tying or tied products are “goods, wares * * * or other commodities,” the case falls within the ambit of the Clayton Act and the plaintiff need only show that “a substantial volume of commerce in the ‘tied’ product is restrained.” Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 608-609, 73 S.Ct. 872, 97 L.Ed. 1277 (1953). If the tie does not involve a commodity but concerns land, services or credit, which do not fit the Clayton Act’s language, it is governed by the Sherman Act and the plaintiff is required to bear the additional burden of proving that the defendant’s economic power with respect to the tying product is sufficient to produce an appreciable restraint. However, the “sufficient economic power” test for per se illegality may be inferred if it appears that the seller has the power to impose other burdensome terms, such as a tie-in, with respect to any appreciable number of buyers within the market. Fortner Enterprises, Inc. v. United States Steel Corp., 394 U.S. 495, 89 S.Ct. 1252, 22 L.Ed.2d 495 (1969). In the instant situation, there is no question that the tied products — remote control cables and electric shift outboard and stern drive engines — are commodities within the meaning of Section 3 of the Clayton Act. Furthermore, O.M.C. has conceded that the practice of tying the sale of its cables to the sale of either type of engine “affects a substantial volume of commerce” (Stip. Facts 6, 56). Thus, the requirements for finding a violation of Section 3 of the Clayton Act have been met unless either of the two defenses advanced by O.M.C. in justification of the tie-in has merit. O.M.C. asserts two defenses to justify its tie-in sales. First, O.M.C. argues that the Clayton Act is inapplicable because the tie-in of remote control cables with its electric shift engines amounts to no more than a bundling of several parts of one product. Secondly, O.M.C. contends that, even if the Court should find that the tied products are separate items, there is a legitimate business purpose for the tie-in, viz., the protection of O.M.C.’s good will in the electric shift engine market. A. The Single Product Defense. It is well settled that neither the Clayton nor Sherman Act is violated by tie-in sales of remote control cables with electric shift engines if these items are but parts of a single product. Fortner Enterprises, Inc. v. United States Steel Corp., 394 U.S. 495, 507, 89 S.Ct. 1252, 22 L.Ed.2d 495 (1969); Northern Pacific Railway Co. v. United States, 356 U.S. 1, 5, 6, 78 S.Ct. 514, 2 L.Ed.2d 545 (1958); Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 614, 73 S.Ct. 872, 97 L.Ed. 1277 (1953); International Manufacturing Co. v. Landon, Inc., 336 F.2d 723, 730 (C.A.9, 1964), cert. denied, 379 U.S. 988, 85 S.Ct. 701, 13 L.Ed.2d 610; United States v. Jerrold Electronics Corp., 187 F.Supp. 545, 559 (E.D.Pa.1960), aff’d per curiam, 365 U.S. 567, 81 S.Ct. 755, 5 L.Ed.2d 806 (1961); Turner, The Validity of Tying Arrangements Under the Antitrust Law, 72 Harv.L.Rev. 50, 67, 68 (1958). However, this rule is easier to state than to apply because antitrust decisions and lit erature contain astonishingly little discussion of the criteria to be applied to distinguish between component parts of a single product and a multiplicity of products. As a general rule, however, a manufacturer cannot be forced to deal in the minimum product that could be sold or is usually sold. On the other hand, it is equally clear that one cannot circumvent the antitrust laws simply by proclaiming that he is selling a single product. Thus, where a combination of items are sold as a single product, the facts in each case must be carefully reviewed in order to determine whether the inference is overcome that such sales are actually disguised tie-ins. For the reasons following, the Court concludes that a remote control cable and an outboard or stern drive electric shift engine should not be classified as component parts of a single product. 1. O.M.C.’s contemporaneously written records reveal that it considered remote control cables to be accessory items to be marketed separately from its engines. Indeed, before 1961, the year O.M.C. began to tie the sale of electric shift engines and control cables, all mechanical shift engines and cables were sold as separate items. (Sauerberg Dep. 75-76 — Docket Item 133.) Beginning in early 1960, O.M.C. noticed the effects of competition in the engine accessory market and embarked upon a promotion program aimed at its distributors and dealers to reverse that trend. (PDX 31.) On June 8, 1960, O.M.C. further noted that the sales of accessories were down 14 per cent from the previous year. To regain this lost percentage of sales O.M. C. announced the intention “to immediately begin a program of more aggressively pushing the sales of existing accessories.” (PDX 32.) At the August 9, 1960 meeting of the Operations Committee it was suggested that Teleflex, Inc., O.M.C.’s supplier of remote control cables, be dropped as a supplier since Teleflex was then selling cables in competition with O.M.C. (PDX 33.) Then on November 9, 1960, the Operations Committee, noting that the “sale of accessories — and particularly cables — is down” wrote that some consideration is being given to reducing O.M.C.’s list price on cables and further recorded: “ * * * [That] consideration also is being given to selling accessories with the motor to insure our getting the sale.” (Emphasis added.) (PDX 35.) 2. In addition to the above written records, O.M.C. issued two “Policy and Procedure” memoranda which expressly classified remote control cables as accessory items and not as component parts of O.M.C.’s engines. 11 (PDX 85, 94.) While O.M.C. strenuously argues that the use of the term “accessories” in the written records referred to above were not meant to infer that remote control cables were not component parts of electric shift engines, it is apparent that O.M.C. officials considered such cables to be separate products from its engines, including electric shift engines. This conclusion finds support in a statement— arising out of an intra-company dispute between the Vice-President of O.M.C.’s Gale Products Division and O.M.C.’s Central Accounting Department — concerning whether the “parts depot” of Gale Products should get the profit from cables sold in the trade through the certificate program or whether the Johnson or Evinrude Engine Divisions should be credited with the cable profit. The Vice-President of the Gale Products Division wrote, on October 16, 1961, to Central Accounting: “Keep in mind that the cable is not a part of the motor when the latter is sold. Nor is it necessary to the engines operation — a competitive cable would suffice.” (PDX 66.) 3. O.M.C.’s marketing practice with respect to its mechanical shift engines likewise supports the conclusion that remote control cables and engines are separate products. O.M.C. has always sold and now sells its mechanical shift engines without tying in the sale of cables. (Tr. 1244.) Between 1962 to 1969 O.M. C. sold over 290,000 mechanical shift outboard engines, ranging from 33 to 115 horsepower, without a tie-in of cables. (Ans. to plaintiff’s Int. 108 — Docket Item 98.) A minimum of 80 per cent of all outboard mechanical shift engines sold, having a horsepower of 33 and 40 horsepower, use remote control cables for throttling purposes and substantially all mechanical shift outboard engines of 50 horsepower and above are used with remote control cables. (Stip. Fact 10.) The use of such cables on mechanical shift engines is more than a matter of style with the bigger and faster engines, for they are unsafe to operate while sitting in the stern. (Stip. Fact 8; Tr. 1119, 1130.) The heavier weight of the engine in the stern has to be offset by some distribution forward, for the combined weight of the engine and operator causes many boats to settle too low in the stern for good visibility and handling. (Tr. 1130; Stip. Fact 8.) Thus, from the point of view of safety, ease of operation and convenience, the use of remote control throttle cables is a practical necessity whenever large outboard engines are used on a boat. Yet, O.M.C. has always and continues to market its mechanical shift outboard engines of 33 horsepower and above without tying in the sale of cables. Therefore, O.M.C.’s claim that a remote throttle cable is a component part of an electric shift outboard engine because it could not otherwise be throttled appears to be simply a make-weight argument. Particularly is this so when mechanical shift outboard engines of 33 horsepower and above are just as difficult and dangerous to operate without the same type of remote control throttle cable, yet such cables are classified differently and sold separately by O.M.C. 4. The throttle mechanism which O. M.C. uses on its electric shift outboard engines is substantially identical to the throttle mechanism on its mechanical shift outboard engines, and the O-style cables used to regulate the throttle of both engines are identical. (Tr. 1153-1157.) O.M.C. has made no distinction between the remote throttle cable used on the mechanical shift and electric shift outboard engines which would in any way justify the conclusion that such a control cable is a part of a single product when sold with an electric shift engine, but is a separate product when sold with a mechanical shift engine. 5. O.M.C. has sold large quantities of its O-style cables independently of its sales of mechanical shift outboard engines. O.M.C. also purchases its remote control cables, pursuant to its specifications, as a distinct product from a number of outside suppliers. These factors also militate against O.M.C.’s claim that cables are a part of a single product when sold with an electric shift outboard engine. See Susser v. Carvel Corp., 332 F.2d 505, 514 (C.A.2, 1964), cert. dis. 381 U.S. 125, 85 S.Ct. 1364, 14 L.Ed.2d 284 (1965). 6. O.M.C.’s cable certificate program does not insure that an O.M.C. throttle cable will be used on an O.M.C. electric shift outboard engine. When dealers receive cable certificates for O.M.C.’s engines, their normal practice is not to immediately redeem that certificate for one of O.M.C.’s cables. Generally, such certificates are redeemed in groups of ten or fifteen. Thus, when an O.M.C. outboard engine is installed in a boat, the dealer uses a cable from his inventory on hand which might be an O.M.C. cable or a cable of another brand. (Tr. 419-420, 447-448.) Accordingly, there is no assurance under the certificate program that an O.M.C. cable, which O.M.C. claims to be a component part of a single product, is ever matched with an electric shift outboard engine. At the very least it would appear necessary, in order to call two items parts of a single product, that the two items without fail should be used together. The evidence shows that frequently this is not the case. 7. O.M.C.’s major competitor in the outboard engine market is the Kiekhaefer-Mercury Division of the Brunswick Corporation which markets mechanical shift outboard engines under the name of Mercury. Since the 1964 model year, Mercury outboard engines of 40 horsepower and above have included no means to throttle the engine without remote control cables. Such cables, however, must be purchased in a separate transaction from the purchase of an engine and for a price separate from the price of the engine. (PX 360-363; Tr. 2144-2147, 2149-2160.) While the attitude of a competitor who considers cables and engines to be separate items is not conclusive, it is relevant, and when coupled with O.M.C.’s own practice with respect to mechanical shift outboard engines, it tends to show an industry-wide belief that engines and cables are separate products. 8. Those factors discussed above, which prompted this Court to hold that a remote control throttle cable is a separate product from the electric shift outboard engine, are equally applicable to the O.M.C.’s practice of bundling cables with its stern drive engines. While the throttle assembly on an O.M.C. stern drive engine differs from that on an electric shift outboard engine, this difference does not make the cable needed to adjust the throttle a part of the engine and there appears to be no engineering reason for tying cables to stern drive engines. (Tr. 1801-1803.) Moreover, O.M.C. has on occasion sold its stern drive engines to boat builders without requiring them to purchase remote control cables. (Tr. 1331-1334, 1350-1355; PDX 148, 149, 150, 151, 248.) When the latter practice has been followed, O.M.C. gives a rebate on the purchase price of the cable which is less than the price that a boat builder or distributor would have to pay for a similar cable. (Tr. 1355-1365, 1383-1391; PDX 148, 149, 150, 151, 172, 248.) On the basis of the evidence summarized above, the Court finds that remote control throttle cables are not component parts of electric shift outboard or stern drive engines but are separate products. Thus, O.M.C.’s tie-in sales of cables with these types of engines can not be justified legally on the basis that these items constitute component parts of a single product. B. The Good Will Defense. Prior to Northern Pacific Ry. v. United States, 356 U.S. 1, 78 S.Ct. 514, 2 L.Ed.2d 545 (1958), it had been consistently recognized that the tying together of separate products, which would normally amount to a per se violation of the antitrust laws, might be justified in certain circumstances by the seller’s interest in protecting its good will in the tying product. International Business Machs. Corp. v. United States, supra, 298 U.S. at 140, 56 S.Ct. 701 (1936); United States v. United Shoe Mach. Co., 264 F. 138, 167 (E.D.Mo. 1920), aff’d, 258 U.S. 451, 42 S.Ct. 363, 66 L.Ed. 708 (1922). When the Northern Pacific decision was handed down there was some thought that its declaration that tying arrangements were per se illegal (356 U.S. at 6, 78 S.Ct. 514) had abolished the good will defense. Subsequent cases, however, have clearly established that tie-in sales might possibly be justified on the grounds of a legitimate business interest, including the protection of a manufacturer’s good will. Susser v. Carvel Corp., supra, 332 F.2d at 519, 520; Dehydrating Process Co. v. A. O. Smith Corp., 292 F.2d 653, 655 (C.A.1, 1961), cert. denied 368 U.S. 931, 82 S.Ct. 368, 7 L.Ed.2d 194 (1961); Teleflex Industrial Products, Inc. v. Brunswick Corp., 293 F.Supp. 106, 110 (E.D. Pa.1968), vacated and remanded, 410 F.2d 380 (C.A.3, 1969); United States v. Jerrold Electronics Corp., supra, 187 F.Supp. at 546. Nevertheless, the Court concludes that O.M.C.’s good will defense, based on the evidence adduced in this case, can not justify the tie of cables to electric shift outboard and stern drive engines. O.M.C.’s cable expert William J. Shimanckas, who drew up O.M.C.’s cable specifications, conceded that cables not meeting O.M.C. requirements would not injure its engines. (Tr. 1825.) More significantly O.M.C. does not attempt to explain why, if such specifications are so important for good will, the Company has sold nearly 300,000 mechanical shift outboard engines without a tie-in of the cables necessary to operate such engines. The cables O.M.C. markets separate from the mechanical shift engines must meet the same specifications that cables tied to the electric shift outboard engines must meet. (Shimanckas Dep. 111-120 — Docket Item 121; Tr. 1568-1576; PDX 117.) While O.M.C. alludes to a number of operational and safety problems that could arise from using inferior cables with electric shift outboard engines, no evidence was presented to prove that electric shift engines were more susceptible to such problems than mechanical shift engines of the same horsepower. Nor did O.M.C. offer proof of one instance in which cables of other manufacturers, used with either an O.M.C. mechanical or electric shift engine, caused damage or malfunctioning. In fact, the evidence that was presented appears to the contrary. At least some dealers, who have used both N. W.’s and O.M.C.’s O-style cables, prefer N.W.’s cables in a boat powered by one of O.M.C.’s electric shift engines. (Tr. 420-421, 428-429, 448.) In support of its good will defense, O. M.C. principally stresses two eases. The first is United States v. Jerrold Electronics Corp., supra, 187 F.Supp. 545. That case involved the tying of all parts necessary for the functioning of a community television antenna, including a service contract which provided all technical services for the system. The court was of the opinion that the government had established the prerequisites needed to declare the tie per se illegal, however, the court recognized that the peculiar facts of that ease did not justify such a holding. Jerrold was the pioneer in the complex electronics market of cable television. It had to use sensitive and unstable equipment. Past experience with two trial locations showed that any new system would require adjustments and that in most of the communities Jerrold would service there were no people with the technical training to do any of the work. Therefore, the court in allowing the tie-in of the service contracts stated: “A rash of systems with unsatisfactory pictures could not be tolerated. The amount of capital necessary to start a system was substantial. Interest would wane rapidly if the systems installed did not consistently produce satisfactory results. Not only Jerrold’s reputation but the growth of the entire industry was at stake during the development period. In addition to its reputation, Jerrold was also dependent upon successful system operation for payment. Many operators were not in a position to pay cash for the necessary equipment and the risks were such that outside financing could not be obtained. Therefore, payment was often contingent on the success of the system. It appeared that it was cheaper and more practical to insure that a system was properly installed in the first place than to attempt to get it operating once it was strung up. Furthermore, * * *, use of existing utility poles was an important cost and public relations factor. The utility companies were reluctant to have men of unknown ability working on their poles. Therefore, it was desirable that the system be installed under the supervision of men whose ability was known to the utility companies through other dealings. For these reasons, it was decided that community equipment should be sold with engineering services in order to foster the orderly growth of the industry on which the future of Jerrold depended.” (187 F.Supp. at 556-557.) It cannot be contended seriously that any of the above factors are present in this case. The control cables here in question are not nearly as complex as the electronics system in Jerrold. Other brand cables have been used, apparently without any problems, with O.M.C. mechanical and electric shift engines for a number of years. Neither is O.M.C.’s future in jeopardy by the disallowance of the tie-in nor is the entire industry threatened. Jerrold is not applicable to this case. The second case in which the good will defense was successful and upon which O.M.C. relies is Dehydrating Process Co. v. A. O. Smith Corp., supra, 292 F.2d 653. In that case the defendant had sold its silos and silo unloaders separately for seven years. The undisputed evidence showed that the defendant, during that seven year period, had received complaints from 50 per cent of its customers who had purchased unloaders separately and had used them with silos of other manufacturers. Based on the 50 per cent complaint rate, the defendant adopted the policy of tying together the sale of its silos and unloaders. The Court upheld the tie because, by showing that the 50 per cent complaint rate was the stimulus for instituting the tie, the defendant had sustained its burden of proof on the business justification or good will defense. The factual distinctions between the Dehydrating case and the case at bar are readily apparent. With over 6,000 dealers in the country, O.M.C. has presented no evidence of customer dissatisfaction where an O.M.C. electric shift outboard or stern drive engine was used with control throttle cables manufactured by others. The Court therefore finds no reasons, technical or economic, on which to accept the tie-in of control cables and engines as a business necessity for the protection of O.M.C.’s good will. The Court does not hold that O.M.C.’s cable specifications are unreasonable. It simply holds that O.M.C. has failed to present sufficient proof to justify its practice of tying control cables to the sale of its electric shift outboard and stern drive engines. Whatever protection to its good will O.M.C. believes is necessary can be obtained by way of specifications. Mr. Shimanckas, O.M.C.’s cable expert, testified that he could write a specification that would be sufficiently clear and complete, so that it would read only on cables that were good enough to fully protect O.M.C.’s engines. (Tr. 1804-1808; PDX 85, 94.) Indeed, O.M.C.’s policy and procedure statements point out that such specifications are a viable alternative. (Stip. Fact 37; PDX 85, 94.) Accordingly, since cable specifications are not impossible or impractical to prepare, the tie-in sales of cables with electric shift outboard and stern drive engines cannot be justified as a practice necessary to protect O.M.C.’s good will. Standard Oil Co. v. United States, supra, 337 U.S. at 305-306, 69 S.Ct. 514, 2 L.Ed.2d 545; Susser v. Carvel Corp., supra, 332 F.2d at 519-520. The Court concludes that O.M.C.’s practice of tying its sales of remote control throttle cables with its sales of electric shift outboard and stern drive engines constitutes a violation of Section 3 of the Clayton Act. II. TIE-IN SALES OF ELECTRIC SHIFT CONTROL BOXES WITH ELECTRIC SHIFT ENGINES. N.W. has also charged that O.M.C. violated Section 1 of the Sherman Act, 15 U.S.C. § 1, and Section 3 of the Clayton Act, 15 U.S.C. § 14, by illegally tying the sales of its electric shift control boxes to its electric shift outboard and stern drive engines. O.M.C. concedes that it sells its remote control boxes in a unit package with both types of electric shift engines and that the ties “affect a substantial volume of commerce.” (Stip. Facts 7, 55.) O.M.C. relies on the same two defenses discussed in Part I of this opinion to justify the tie-in. In addition, however, O.M.C. has challenged N.W.’s standing to bring this action for treble damages under 15 U.S.C. § 15 or for injunctive relief under 15 U.S.C. § 26. Because the Court finds that a determination of the standing issue will be dispositive of this phase of the case, the Court turns to a consideration of that question. A. Standing To Sue For Treble Damages. In order for N.W., a private litigant, to have standing to bring an action for treble damages under 15 U.S.C. § 15, it must demonstrate an “intention and preparedness” to engage in the electric shift control box business from which it claims to have been excluded by O.M.C.’s illegal conduct. The leading case in this Circuit which applied the above rule is Triangle Conduit & Cable Co. v. National Electric Products Corp., 152 F.2d 398 (C.A.3, 1945). In that case the Court held that the plaintiff, who manufactured cable bushings for its own use, failed to establish that it intended and was prepared to go into the business of producing and selling bushings to outside cable manufacturers. Thus, the dismissal of the action was affirmed because the plaintiff lacked standing. The Court stated: “The section of the anti-trust laws * * * referred to [15 U.S.C. § 15] has the limited purpose of affording compensation to those who have at least the intention and preparedness of engaging in a designated business and who are actually injured in their business or property by an unlawful act. The situation of such plaintiff must be different from that of the general public.” “The plaintiff designed and perfected its machine in order to manufacture its own bushings and that is just what it has been doing ever since that time. At most an anti-trust violation has been presented with no injury to plaintiff by reason thereof. * * * It is not vital under the statute to aver an injury to a specific going business but as 'said in the leading and controlling decision of American Banana Co. v. United Fruit Co., 2 Cir., 166 F. 261 at page 264: * * it is necessary to state facts showing an intention and preparedness to engage in business.’ Plaintiff does not meet this test * * (152 F.2d at 399-400.) Numerous other cases have applied the principle that there be an intention and preparedness to enter a particular business activity. Martin v. Phillips Petroleum Co., 365 F.2d 629, 633 (C.A.5, 1966), cert. denied 385 U.S. 991, 87 S.Ct. 600, 17 L.Ed.2d 451 (1966); Volasco Products Co. v. Lloyd A. Fry Roofing Co., 308 F.2d 383, 395-396 (C.A.6, 1962), cert. denied 372 U.S. 907, 83 S.Ct. 721, 9 L.Ed.2d 717 (1963); Lawlor v. National Screen Service Corp., 270 F.2d 146, 152-153 (C.A.3, 1959), cert. denied 362 U.S. 922, 80 S.Ct. 676, 4 L.Ed.2d 742 (1960); Denver Petroleum Corp. v. Shell Oil Co., 306 F.Supp. 289, 307 (D.Col.1969); Waldron v. British Petroleum Co., 231 F.Supp. 72, 81-82 (S.D.N.Y. 1964); Deterjet Corp. v. United Aircraft Corp., 211 F.Supp. 348, 353 (D.Del. 1962); Delaware Valley Marine Supply Co. v. American Tobacco Co., 184 F.Supp. 440, 443-444 (E.D.Pa.1960), aff’d 297 F.2d 199 (C.A.3, 1961), cert. denied 369 U.S. 839, 82 S.Ct. 867, 7 L.Ed.2d 843 (1962). A simple hope or expectation to enter a business is clearly insufficient. Peller v. International Boxing Club, Inc., 227 F.2d 593, 596 (C.A.7, 1955); Image and Sound Service Corp. v. Altec Service Corp., 148 F.Supp. 237, 239 (D.Mass. 1956). A mere subjective intent to establish a new enterprise or to expand an already existing business is not enough on which to base standing to sue; there must be overt and objective preparations. Martin v. Phillips Petroleum Co., supra, 365 F.2d at 632-634; Volasco Products Co. v. Lloyd A. Fry Roofing Co., supra, 308 F.2d at 395-396; William Goldman Theatres, Inc. v. Loew’s Inc., 69 F.Supp. 103 (E.D.Pa. 1946), aff’d 164 F.2d 1021 (C.A.3, 1948), cert. denied 334 U.S. 811, 68 S.Ct. 1016, 92 L.Ed. 1742 (1948); Pastor v. American Telephone & Telegraph Co., 76 F. Supp. 781 (S.D.N.Y.1940). Applying the “intention and preparedness” test to this case, the Court concludes that the evidence does not support a finding that N.W. intended or was prepared to enter the electric shift control box market. Indeed, the Court finds that the relevant record evidences a contrary intent. N.W. has never manufactured and put on the market any device activated by electricity. (Tr. 326.) The company is primarily a cable producer (Stip. Fact 69), and at no time over the past ten years has N.W. considered producing electric shift control boxes. In the summer of 1961, John G. Ford (“Ford”), an employee of N.W., learned of O.M.C.’s electric shift engines, and he, without authorization, worked up a very rough sketch of a device to adapt N.W.’s mechanical control box for use with an electric shift engine. (Stip. Fact 70.) Ford also, without authority, made a hacksaw mock-up of his idea from a N.W. mechanical control box. (Stip. Fact 71.) As sketched, however, the proposed control box visualized by Ford could not operate O.M.C.’s electric shift engines. (Stip. Fact 70.) Furthermore, had Harry E. Shontz (“Shontz”), N.W.’s President, known what Ford was suggesting, he would have stopped Ford from making the mock-up of the control box. (Stip. Fact 71.) In fact, Shontz testified that N.W. during that period of time did not have the capital to expend on such a project. (Tr. 337-341.) Nevertheless, N.W. claims that its conduct during the relevant time period clearly demonstrated an intent and preparedness to enter the electric shift control box market. The Court finds no merit in that argument. The negotiations between N.W. and Fall River Controls, Electro Marine Company, and Witney Buddo, which were conducted in the early 1960’s, concerned single lever control boxes designed for usé with mechanical shift engines. (Stip. Fact 74). These negotiations occurred before Shontz had any knowledge of O.M.C.’s electric shift control box, and they were not undertaken with the view towards entering the electric shift control box business. (Tr. 311, 368.) Even if such preliminary discussions had been concerned with electric shift control boxes, it would not change the situation because mere preliminary negotiations do not constitute a showing of an intention and preparedness to enter a market. Peller v. International Boxing Club, Inc., supra, 227 F.2d at 595. Neither does the Court find any significance in the fact that Mr. Robert G. Cooper, N.W.’s manager of marine sales, requested, on the average of twice a year, that N.W. introduce a single lever remote control box that could be used with both electrical and mechanical shift engines. (Tr. 685, 703.) The Court can not infer from these entreaties any intention or preparedness on the part of N.W. to enter the relevant market. But aside from the above, N.W. failed to take any substantial affirmative action which would have been necessary for entry into the electric shift control box market. N.W. never conducted a patent search to determine what patents existed pertaining to electric shift control boxes. (Stip. Fact 75; Tr. 343-344.) N.W. never disassembled or directed anyone else to disassemble the lower unit of an O.M.C. electric shift outboard engine in order to determine the manner of its interworkings. (Stip. Facts 76, 80; Tr. 363-365.) Until the fall of 1970 N.W. never examined one of O.M.C.’s electric shift control boxes (Stip. Fact 77), and it was not until January, 1971 that N.W. subjected one of the boxes to any form of testing. (Stip. Fact 78.) N.W. neither hired anyone nor brought--any machinery to produce such boxes. (Tr. 367.) Other than Ford’s primitive mock-up, N.W. has never developed any kind of design or prototype of electric shift control box. (Tr. 327-328.) N.W. has never undertaken any steps to determine whether it is economically feasible for it to enter that market. Other significant factors which indicate N.W. had no desire to expand its operations into the electric shift control box market are shown by N.W.’s experience in the related mechanical shift box market. N.W. is the only manufacturer that does not market the more complicated single lever control box for mechanical shift engines. (Tr. 311.) N.W. has made no attempt to adapt its two-lever mechanical box for use with Mercury engines. The sole reason given for not pursuing that market is that Mercury boxes are too competitively priced. (Tr. 318-320.) Despite that fact, N.W. brings the present claim concerning electric shift control boxes without presenting any evidence that N.W. can make an electric shift box that would be competitively priced. Furthermore, N. W.’s own experience with mechanical shift control boxes designed for use with O. M.C.’s mechanical shift engines appears to be a failure. In this untied market N.W. has had little success. Shortly after its mechanical boxes were marketed, N.W. had to recall many of them for the purpose of replacing a defective part. The recall cost N.W. $25,-000 to $30,000. (Stip. Fact 85.) Since that time the sale of N.W.’s mechanical control boxes has decreased sharply while the sale of N.W.’s cables for the same engines has increased. (Stip. Facts 82-83; Tr. 324-326.) While the above facts do not conclusively negate N.W.’s contention that the company was about to enter the electric shift control box market, they do shed light upon N.W.’s general attitude regarding the control box market. The composite picture drawn from all the above facts is that N.W. has never, either presently or at any time prior to this suit, seriously entertained the notion of entering the electric shift control box market or was prepared to do so. Two additional facts strengthen this conclusion. First, in June 1966, N.W. complained to the Federal Trade Commission about O.M.C.’s practice of tying remote control cables to its electric shift engines but said nothing concerning the tie of the electric shift control boxes. (DX 34, p. 3.) Second, while this action was commenced June 16, 1969, it was not until November, 1970, that the complaint was amended to include the claims relating to the electric shift control boxes. (Tr. 372-373.) Thus, it appears that N.W.’s claim with respect to electric shift control boxes is a recent afterthought. B. Standing To Seek Injunctive Relief. While the right of a private litigant to sue for treble damages is strictly construed, Westor Theatres v. Warner Bros. Pictures, 41 F.Supp. 757, 762 (D.N.J.1941), the test for standing to seek injunctive relief under Section 16 of the Clayton Act, 15 U.S.C. § 26, is less exacting. The latter Section providing for injunctive relief “was enacted by the Congress to make available equitable remedies previously denied private parties,” and it “invokes traditional principles of equity and authorizes injunctive relief upon the demonstration of ‘threatened’ injury.” Zenith Radio Corp. v. Hazeltine, 395 U.S. 100, 130, 89 S.Ct. 1562, 1580, 23 L.Ed.2d 129 (1968). The standing requirement is not predicated on a plaintiff’s having already suffered actual injury, Bedford Cut Stone Co. v. Journeymen Stone Cutters’ Assn., 274 U.S. 37, 54-55, 47 S.Ct. 522, 71 L.Ed. 916 (1927), because “he need only demonstrate a significant threat of injury from an impending violation of the antitrust laws or from a contemporary violation likely to continue to recur.” Zenith Radio Corp. v. Hazeltine, 395 U.S. at 130, 89 S.Ct. at 1580, accord; United States v. W. T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953); United States v. Oregon State Medical Society, 343 U.S. 326, 333, 72 S.Ct. 690, 96 L.Ed. 978 (1952); Swift and Co. v. United States, 196 U.S. 375, 396, 25 S.Ct. 276, 49 L.Ed. 518 (1905); Bedford Cut Stone Co. v. Journeymen Stone Cutters’ Assn., supra, 274 U.S. at 54, 47 S.Ct. 522. Thus, in order for this Court to invoke the traditional principles of equity and grant injunctive relief, N.W. must prove such a “threatened injury.” The general rule in equity is that injunctive relief against threatened conduct that is likely to cause loss or damage will not be granted to a private litigant where the injury complained of is of a public nature. 6 Toulmin’s Anti-Trust Laws § 16.79, (1951). When a private litigant brings a suit for injunctive relief that litigant must show a threatened injury for which he has no adequate remedy at law, and he “must establish his right to redress for the particular wrong done to him.” Zenith Radio Corp. v. Radio Corporation of America, 106 F.Supp. 561, 576 (D.Del. 1952). One of the best statements of the law on this point appears in Ring v. Spina, 84 F.Supp. 403, 406 (S.D.N.Y. 1949), where the Court stated: “Plaintiff is entitled to injunctive relief which would protect him against prospective damage. 15 U.S.C. § 26. Such damage arises when there is danger of interference with rights or privileges he now enjoys, not merely as a member of the general public, but as one engaging in the commerce which is being restrained.” (Emphasis added.) Furthermore, it is not enough to merely assert that certain acts will inflict irreparable injury. It is necessary that a plaintiff present facts “from which the court can reasonably infer that such would be the result.” Cruickshank v. Bidwell, 176 U.S. 73, 81, 20 S.Ct. 280, 284, 44 L.Ed. 377 (1899). Nor does it matter that the act complained of may be illegal. “Suitors may not resort to a court of equity to restrain a threatened act merely because it is illegal or transcends constitutional powers. They must show that the act complained of will inflict upon them some irreparable injury.” United Fuel Gas Co. v. Railroad Commission, 278 U.S. 300, 310, 49 S.Ct. 150, 152, 73 L.Ed. 390 (1929). In the instant case, the Court, assuming that the tie-in of electric shift control boxes and engines to be illegal, finds that N.W. has not demonstrated a threat of injury sufficient to justify its request for injunctive relief. N.W. has failed to demonstrate that it stands in shoes any different from the rest of the public. In such instances, it is up to the Attorney General or a party that can adequately demonstrate a concrete threat of injury to enforce the antitrust laws. The Court has heretofore found that N.W. has never had an intention or preparedness to enter the electric shift control box market before this suit was brought, (Section A supra), and since the commencement of this lawsuit, N.W. has not taken any steps to determine the economic feasibility of developing or marketing a control box for electric shift engines. (Stip. Fact 73.) A mere subjective intent, assuming N.W. now has an intention to enter the market with its own electric shift control box, in the absence of any preparations whatsoever, will not justify the equitable relief of an injunction. This principle was made clear in Holiday Inns of America, Inc. v. B & B Corporation, 409 F.2d 614, 618 (C.A.3, 1969), where the Court stated: “We must protect that which is protectable, but, in so doing, we must limit the use of injunctive relief to situations where it is necessary to prevent immediate and irreparable injury. The dramatic and''drastic power of injunctive force may be unleashed only against conditions generating a presently existing actual threat; it may not be used simply to eliminate a possibility of a remote future injury, or a future invasion of rights, be those rights protected by statute or by the common law.” In that case, which concerned the Holiday Inns of America, Inc.’s attempt to enjoin the defendant’s use of its trademark, “Holiday Inn,” the Court denied the plaintiff’s requested relief despite facts showing a definite intent to expand its operations to the Virgin Islands. “ * * * Holiday had no right to immediate relief because it failed to present sufficient evidence of present debasement of its protected mark, and although it established a strong case of a future likelihood of confusion if and when the identical marks would begin to compete in the same market area for identical services, the geographic location of these islands militates against a finding that there is a use by the defendant of that type of competitive commerce envisioned by Congress. Holiday has received two franchise applications and a request for the availability of a franchise for the operation of Holiday Inn motels in the U. S. Virgin Islands. At oral argument its counsel represented that these applications are being reserved until this litigation is determined. Because we have decided that if and when Holiday does commence such operations there will be a likelihood of public confusion, it would then be entitled to the relief granted by the district court.” (409 F.2d at 618-619.) The Court concludes that since N.W. has failed to prove a significant threat of injury from O.M.C.’s tie-in of electric shift engines and electric shift control boxes, assuming the illegality of the tie, N.W. lacks the necessary standing to seek injunctive relief in a private capacity. Coupling this holding with that finding that N.W. lacks standing to sue for treble damages, the Court concludes that N.W.’s claims with respect to electric shift control boxes are without merit and should be dismissed. III. TIE-IN SALES OF CONTROL BOXES TO MECHANICAL SHIFT ENGINES THROUGH COERCIVE PRESSURE TACTICS ON DEALERS. N.W. for the first time during the fourth day of trial leveled the charge that O.M.C. in 1962 initiated a practice of illegally tying the sale of its control boxes with its mechanical shift engines in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1, and Section 3 of the Clayton Act, 15 U.S.C. § 14. N.W. claims that these tie-in sales were accomplished by O.M.C. applying coercive pressure upon its engine dealers to buy O.M.C.’s control boxes, rather than a competitor’s boxes. Of course, an illegal tie-in need not be accomplished by a formal contractual provision; it can be inferred from a persistent and deliberate course of coercive dealing through misrepresentation, sabotage and threats of cancellation. Advance Business Systems & Supply Co. v. SCM Corporation, 415 F.2d 55, 63-64 (C.A.4, 1969), cert. denied, 397 U.S. 920, 90 S.Ct. 928, 25 L.Ed.2d 101 (1970). However, the evidence in this case fails to sustain the charge that O.M.C. engaged in such illegal activity. Indeed, the circumstances and arguments on which N.W. relies in support of this contention lead to an opposite conclusion. N.W. argues that, in order to persuade its engine dealers to sell its accessories with mechanical shift engines, O.M.C. threatened the cancellation of its engine franchises, threatened that parts deliveries would be delayed, and otherwise threatened economic sanctions against the dealers. N.W. never established that this pressure was differentiated as between control boxes for mechanical shift engines, on the one hand, and untied cables, on the other. In fact, N.W. does not contend that O.M.C. focused its unlawful pressure on promoting its mechanical shift boxes and not on control cables. Instead N.W. appears to argue that the pressure was uniform, applying to both boxes and cables, but that since N.W. had been selling cables longer than control boxes, it had a toe-hold in the market for cables, a position of strength that it did not enjoy in the box market. The evidence, however, does not support such an argument. N.W. had been selling O.M.C. control boxes since 1961 (Stip. Fact 11), prior to the time O.M.C. began its allegedly coercive pressure tactics. Those control box sales were at least respectable for the first two or three years, but box sales then fell off sharply, allegedly because O.M.C.’s pressure tactics began to become effective. The problem with this conclusion is that the kind of pressure claimed to have been uniformly applied would have been just as likely to restrain a dealer from selling competitive cables as competitive control boxes. But despite this undifferentiated pressure, the record is clear that N.W.’s sales of control cables steadily grew both in volume (Stip. Fact 83; Ans. to Def’s Int. 54 — Docket Item 94) and in percentage of the market. .(DX 82, p. 1.) This contrasts markedly with N.W.’s sales of mechanical shift control boxes, (Stip. Fact 82; ,Ans. to Def’s Int. 54; DX 82, p. Ia). The record appears clear that there were a number of reasons for this different experience, none of them remotely related to any unlawful pressure tactics on the part of O.M.C. First, N.W.’s box was a two lever box and was not as popular with the boating public as a single lever box. (Tr. 703-704.) Secondly, purchasers of marine engines ordinarily prefer the engine manufacturer’s control box, not only because of color and styling but also because it is normal in the trade for a dealer to match an engine with the engine manufacturer’s control box. (Tr. 2162-2164.) Thirdly, it is very likely that N.W. may have lost some of its good will by its first mistakes in the quality of its control box. N.W. suffered an initial set back in its attempt to sell its box. (Shontz Dep. 516-523— Docket Item 107.) In fact, N.W. was forced in the summer of 1961 to recall many of its mechanical shift control boxes for the purpose of replacing defective parts. (Stip. Fact 85.) It clearly appears that N.W.’s lack of success in the sale of its control boxes when compared to the sale of its cables is explained by the above factors rather than by any unlawful coercion on O.M.C.’s part. A second major difficulty with N.W.’s pressure theory is that it ignores O.M.C.’s distribution system. O.M.C.’s Evinrude and Johnson Divisions manufacture and sell mechanical shift outboard engines under their respective trade names directly to engine dealers. (Tr. 1296-1297.) However, control boxes and cables to be used with such mechanical shift outboard engines are manufactured or purchased by O.M.C.’s Gale Products Division and sold by it to O.M.C.’s independent parts distributors, who in turn sell them to engine dealers. (Stip. Facts 12, 30c; Tr. 1327-1328.) The undisputed evidence shows that Johnson and Evinrude salesmen are solely interested in selling engines. (Tr. 1211-1212; 1254-1255.) They have no interest in promoting O.M.C.’s sales of mechanical shift control boxes or cables as they receive no commissions or other incentives for such sales. (Tr. 1211; 1256-1257; 1302-1303; 1424-1425.) These salesmen would not risk losing an engine sale by trying to tie in a box and cable sale to a sale of a mechanical shift engine. (Tr. 1256-1257.) It is O.M.C.’s Gale Products Division, not O.M.C.’s Johnson and Evinrude Divisions, which profits from the sale of control boxes and cables sold for mechanical shift engines. (Tr. 2037-2039.) It was not until 1971, that Gale Products even had a sales force which visited the independent parts distributors to promote accessory sales. (Tr. 1322-23; 1327.) There is no evidence that Gale Products Division ever applied pressure on its distributors to force the sale of mechanical shift boxes with mechanical shift engines. Moreover, the parts distributors are independent business men whose practices and policies O.M.C. cannot control. An analysis of the record indicates that N.W. has failed to prove a single instance in which an engine dealer’s franchise was cancelled, a parts delivery was delayed, or any other sanction was applied because a dealer handled a competitive mechanical shift box or failed to purchase a sufficient number of control boxes from O.M.C. The record is barren of any proof that such sanctions were even threatened. In this regard, three of N.W.’s witnesses, Messrs. Stewart, Heely and Tochterman, had personal experience as O.M.C. dealers. Mr. Tochterman was not questioned regarding “pressure.” Of the other two former dealers, the only pressure described by Mr. Heely was allegedly applied by O.M.C.’s independent parts distributors, and that had no overtones of coercion but merely of normal sales persuasion. (Tr. 458-459.) Mr. Stewart’s testimony on this point was merely to answer “yes” to the question of whether O.M.C. applied “pressure or persuasion on its dealers” to use its control box and cable with its engine. (Tr. 430-431.) Two other N.W.’s witnesses on pressure were independent marine distributors. One, Mr. Donald Clark, had previously been affiliated with one of O.M.C.’s parts distributors. He testified there was pressure, “not overt”, and it was applied by parts distributors not O.M.C. Furthermore, his explanation of “pressure” does not show coercion but only normal sales promotion. (Tr. 2175-2176.) The other independent distributor, Mr. Keller, was an O.M.C. competitor who had long done business with N.W. While he spoke of “pressure” in terms of threatening to cancel a franchise, his testimony was no more than second-hand knowledge based on hearsay. In any event, it was implicit from his testimony that he was of the opinion that any attempt at sales promotion carries an ultimate threat of franchise cancellation. (Tr. 635, 662-663.) Two other witnesses testified who were affiliated with Great Lakes Products, a manufacturer of control boxes and cables sold in competition with O.M.C. Their testimony, although they spoke of “obstacles” having been interposed by O.M.C. to the sale of their control box, merely supports the conclusion that O.M.C. did no more than apply normal “sales pressure [to] * * * buy O.M.C.’s line.” (Tr. 479, 484, 490, 495-496, 499-500, 503-505.) The only other testimony adduced on the pressure issue was by Mr. Shontz, N.W.’s President, and Mr. Cooper, N.W.’s Sales Manager. Their testimony, however, amounted to no more than hearsay and totally unsupported conclusions. (Tr. 356-361, 519-521, 689-690, 694-697, 712-713, 787-788.) On the other hand, all of O.M.C.’s witnesses flatly denied the use of coercive pressure, and they continually warned their salesmen against such practices and provided a sales manual which proscribed such tactics. (Tr. 1209-1211, 1254-1256, 1264-1265, 1324-1325, 1424-1425, DX 135.) The Court concludes that N.W. has failed to sustain its burden of proving the charge that O.M.C. engaged in a coercive course of conduct towards dealers amounting to the imposition of a tie of its control boxes to its mechanical shift engines. Indeed, the evidence compels the conclusion that the charge is baseless. IV. REFUSAL TO PURCHASE. N.W. has also charged that O.M.C. has violated Section 2 of the Sherman Act because it refused, under a policy allegedly adopted in 1960, to purchase cables from suppliers that maintain an independent distribution system selling cables in competition with O.M.C. N.W. contends that on three separate occasions, in October, 1961, (Tr. 108, 127-128), in December, 1964, (Tr. 672-675), and in May, 1968, (Tr. 678-684; DDX 32, 53, 54), O.M.C. refused to deal with N.W. as its cable supplier. The refusals to deal violate Section 2 of the Sherman Act, N.W. asserts, because they were prompted by O.M.C.’s intent to monopolize the cable market, or in the alternative, were motivated by O.M.C.’s desire to attempt to monopolize the cable market. Before considering N.W.’s allegations or the defenses relied upon by O.M.C. pertaining to the alleged refusal to deal, the Court finds that a general discussion of Section 2 of the Sherman Act is necessary. That Section reads in part: “Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a misdemeanor, * * (15 U.S.C. § 2). The law makes it illegal to “monopolize” or “attempt to monopolize,” and since the standards for finding an unlawful “monopolization” and an “attempt to monopolize” are different, they will be considered separately. A. Monopolization. In order to commit the forbidden act of monopolization under 15 U.S.C. § 2, it is necessary that the party charged possess monopoly power. United States v. E. I. Du Pont De Nemours & Co., 351 U.S. 377, 76 S.Ct. 994, 100 L.Ed. 1264 (1956). “Monopoly power is the power to control prices or exclude competition,” Id. at 391, 76 S.Ct. at 1005, from any part of the trade of commerce among the several States, or foreign nations. The mere possession of monopoly power, however, is not a violation of the law. United States v. Grinnell Corp., 384 U.S. 563, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966); United States v. Aluminum Co. of America (“Alcoa”), 148 F.2d 416 (C.A. 2, 1945). There must be an intent to monopolize in order to violate Section 2 of the Sherman Act. The requisite intent is said to exist where there is merely the willful acquisition of such power or the conscious maintenance of it. United States v. Grinnell Corp., supra, 384 U.S. at 570-571, 86 S.Ct. 1698. It is not necessary that a specific intent to bring about the prohibited result be proved, United States v. Griffith, 334 U.S. 100, 105, 68 S.Ct. 941, 92 L.Ed. 1236 (1948); United States v. Aluminum Co. of America, supra, 148 F.2d at 432, nor must the Court find an actual exclusion of competitors from the market. The possession of monopoly power coupled with “the intent and purpose to exercise that power” is sufficient. American Tobacco Co. v. United States, 328 U.S. 781, 809, 66 S.Ct. 1125, 1139, 90 L.Ed. 1575 (1945). And since a monopolist does not monopolize unconsciously, the required intent is present if the “monopoly results as the consequence of a defendant’s conduct or busine