uses this service mark gets nothing except his fee for doing the dyeing or cleaning. He never has had any title whatever to the goods.

Mr. ROGERS. Under existing law those marks are not registered because they are not affixed to the goods.

Mr. MARTIN. With reference to Mr. Fenning's remarks, it seems to me that they might be construed in a way different from what certainly those with whom I have worked have construed this provision with reference to service marks. This language mentioning the features of radio and other advertising, we have always considered was limited to the definition of a service mark which immediately precedes it, namely, only those radio features and advertising would be included in this particular provision which consisted of a mark used in the sale or advertising of services, to identify the services of one person and distinguish them from the services of others. With that limitation on it, it seemed to the committee that there could be no harm in this particular language, and certainly any radio advertising which fits that definition of a service mark should be properly registerable.

Mr. LANHAM. This whole section is taken up with the connotation of the respective terms that are used in the act. This particular paragraph has to do with service marks exclusively, and therefore this paragraph would apply only to services. Is that not correct? Mr. MARTIN. Exactly.

Mr. LANHAM. However, Mr. Savage brings up the suggestion that in line 20, page 44, the word "other" should be omitted before "distinctive." I have heard no expression on that.

Mr. MARTIN. I see no reason why it should not be omitted.
Mr. LANHAM. If there is no objection, we will omit it.

Mr. FENNING. I think we ought to take up the question of advertising and make up our minds whether we are going to let an advertisement be recorded as a trade-mark. Remember, these service marks are put on the principal register. They are given all the dignity of a registered trade-mark. They are never applied to the goods, and a man may put out a 52 weeks' advertisement, using a different term each week.

Mr. LANHAM. That is an objection to the paragraph itself, is it not? Mr. FENNING. That is an objection to the word "advertising." If you take out in line 17 the words "or advertising" so that it reads "The term 'service mark' means a mark used in the sale of services." Mr. SAVAGE. A mark used continuously, not changed every week. Mr. FENNING. He might be using 50 advertisements in 50 magazines.

Mr. SAVAGE. But as soon as he discontinues the use of it, he abandons it and it is no longer a valid registration.

Mr. FENNING. If he intends to abandon it.

Mr. SAVAGE. If he does abandon it, whether he intends to or not. If he discontinues its use, he abandons it.

Mr. MARTIN. May I say this, Mr. Fenning: This radio feature was intended to cover such advertising features, radio advertising features as Amos and Andy, for example, where "Amos and Andy" would be a service mark owned by these particular individuals who use those

names.

Mr. FENNING. What service is there, there?

Mr. MARTIN. The service varies with different goods. In one instance it would be one goods, and if it changed their sponsor it would be other goods. But the mark belongs to Amos and Andy. Now, that was a typical example to fit this radio feature. That is what I had in mind.

Mr. FENNING. One of the other things was a score of music which was used as an introduction to a radio feature, such as Charlie McCarthy.

Mr. LANHAM. Would not that come more under copyright than trade-mark?

Mr. FENNING. It was thought if you are going to protect advertising which is printed and give the man the benefit of that protection, then you ought to give the man who advertises over the radio the same benefit, and I think maybe there is some justification in that, if you are going to take care of advertising which is not a mark placed on the goods. Personally, I think advertising should be omitted. Mr. STEVENSON. So do I.

Mr. LANHAM. Well, if you omit it there, would you omit it in line 21 also?

Mr. FENNING. Yes; because radio cannot apply to the goods. It is pure advertising-unless you look on the radio program itself as a service.

Mr. MARTIN. How would the sponsors of Amos and Andy protect that mark?

Mr. FENNING. Take out "or other advertising" in line 21, so it would read "and other distinctive features of radio advertising used in commerce."

Mr. MARTIN. That would do it.

Mr. FENNING. Take out "advertising" in both instances. It seems to me that will take care of Amos and Andy.

Mr. HANDLER. Would not Amos and Andy be covered by the title of the radio program rather than "distinctive features"?

Mr. LANHAM. Leave out "or other advertising" and it would certainly be covered by this, would it not, "distinctive features of radio used in commerce"? That is certainly a distinctive feature of radio used in commerce.

Mr. ROGERS. We can hear these programs all night and never hear the sponsor. Of course, everybody knows Bergen is the sponsor of Charlie McCarthy.

Mr. LANHAM. The public knows who the sponsor is.

Mr. FENNING. The "other distinctive features" was put in here to cover music, which is brought in by many radios. I think I can say that reasonably, because I was the one who suggested that it be put in. Mr. LANHAM. Does that inhere in trade-mark legislation? Mr. FENNING. Just as much as Amos and Andy does.

Mr. ROGERS. Many of these programs are identified by a theme song or bar of music at the beginning, and people get to recognize that program in that way.

Mr. LANHAM. Could we not protect that by copyright?

Mr. ROGERS. Frequently it is old music.

Mr. STEVENSON. What right would they have to any protection on

that, any more than I would?

Mr. FENNING. Because it has acquired a secondary meaning.

Mr. ROGERS. It is used to identify a particular program.

Mr. STEVENSON. I could play or sing as well as they can and I should have that right, too. Why should they exclude anybody else from using a bar of music?

Mr. ROGERS. They should be able to exclude them only at one point, to introduce a radio program with that particular bar of music, so that that particular program would get the advantage of registration.

Mr. STEVENSON. But why are they any more sacred or entitled to protection more than anybody else because they happened to think of using Annie Rooney or some other song to start a program?

Mr. FENNING. But let us put it this way: You would not think anyone could use Amos and Andy merely because they used that slang talk on the radio, and if a man introduces a program by a bar of music and that is always the way he does introduce it, then that bar of music, in effect, is Amos and Andy.

Mr. ROGERS. If he uses it often enough.

Mr. FENNING. Then you should not be allowed, after he has adopted that, to go on the radio the next hour or the next day at the same time, or some other time, and use the same introduction and let the public think that he is going to come on instead of you. You use it to mean that that is your program.

Mr. HANDLER. That, of course, is not clear from the wording of this provision, and that is a question for judicial construction, as the Congressman states. One program starts with the opening bars of Beethoven's Fifth Symphony. Now, supposing New York Philharmonic starts their program next week with Beethoven's Fifth Symphony?

Mr. LANHAM. Of course, the sponsor of a radio program might adopt a certain piece of music as its introductory theme. All that is intended to be done here is to protect the use of that music from use as an introductory theme of another program, but not otherwise than as applied to some other radio program.

Mr. ROGERS. Like the slogan of the American Tobacco Co., the tobacco auctioneer. There is no exclusive right in that, but if someone else started a program that way, people would say "That is the Lucky Strike program." And so, to that extent, it identifies the program and ought to be protected. In other words, give no monopoly on the general use of a piece of music, but only as applied in that particular

way.

Mr. FENNING. And generally only one bar or two or three bars, not the whole piece of music.

Mr. POHL. Might not the word "symbol" take care of it? The word "symbol" is a pretty broad term, not confined to any particular form of rendition.

Mr. FENNING. Maybe so, but the chances are that "symbol" would be interpreted to be something written, because that is what a trademark is. One of the definitions of trade-mark is "symbol."

Mr. LOUIS ROBERTSON. This again brings up the question of incontestability. I think maybe Mr. Stevenson has something really important there. The thing that is registered, supposedly distinctive, may be quite a long piece that does not have any secondary meaning, but if the registrant gets away with using it for 5 years he has got an incontestable right to use it.

Mr. FENNING. The feature of incontestability probably is not going to work satisfactorily-certainly not as drawn here. It probably will

cause a great many headaches, but it is the protection generally. If you think it is desirable, I suppose we will have to stand for it. Personally I never had any interest in incontestability.

Mr. LOUIS ROBERTSON. I do not believe the profession generally thinks so. The only time the question was presented to the American Bar Association it was taken out. At the February meeting of the patent section and at Indianapolis the question of incontestability was not separately presented.

Mr. LANHAM. Now, gentlemen, it all resolves itself to this: whether the advertising slogans that have nothing to do with the goods but are simply used by particular firms or concerns to show the advisability of utilizing their services should be included, and whether it should be extended to other advertising.

Mr. FENNING. I would take out "or other advertising."

Mr. LANHAM. You would take out "or advertising" in line 17, and "or other advertising” in line 21?

Mr. FENNING. I would take out both of them.

Mr. LANHAM. So far as radio is concerned, that would not interfere. Mr. FENNING. No; because it is not an advertisement. In radio it is an identification of that particular service.

Mr. LANHAM. Then the question reverts to whether or not it is advisable to have it in line 17.

Mr. SAVAGE. I think it ought to stay in 17, because the mark is used either in the sale or advertising of services. I think that should stay in line 17. It is distinctly tied up with services. Down below the clause "or other advertising" might stay in. It is in the subjunctive. It is not tied up with anything. But I am opposed to striking it out in line 17.

Mr. MARTIN. I might point out, Mr. Lanham, that some services are such that yau connot use the mark on the services. For example, take an advertising agency or a bank. A bank has never been able to register a trade-mark because it did not use the mark on the goods. They perform a service, and the only way they can use their mark on the service is on advertising literature. They can put out a little pamphlet with their advertising on it.

Mr. PоHL. They can put it on their bank books and checks.

Mr. MARTIN. They have never been able to register a mark. Now, with "advertising" in here, that would permit a bank to register a service mark, and that is why this language was used here, to cover banks, advertising agents who perform services and cannot use a mark on the service.

Mr. FENNING. But a bank could register under this without advertising the service, because the bang puts it on something, on a circular, on the pass book, on the check book.

Mr. SAVAGE. But when you get down to fundamentals, is not a service mark always an advertisement of the service? It cannot be anything else.

Mr. FENNING. Every mark is an advertisement of the goods.

Mr. SAVAGE. It cannot be anything but an advertisement.
Mr. FENNING. A trade-mark is advertising the goods.

Mr. POHL. But where you have goods, you can apply the mark to the goods, but where you have services you can only apply it to something that comes with the service.

Mr. SAVAGE. To advertise the service is its sole function.

Mr. LANHAM. Well, gentlemen, we will just have to settle this as best we can.

Mr. FENNING. I wold like to take out "all advertising" in line 21 anyhow.

Mr. LANHAM. I understand there is no particular objection to that. Mr. BAILEY. Mr. Chairman, Mr. Beesley has brought up a question that involves the paragraph begining with line 4, page 45 of the committee print. Now, section 33 (1) (a), that first section of 33, is obviously intended, I think, only to apply to the actual infringer. That is the person who sells the goods, and section (b) is intended to apply to the printer, the newspaper, the label manufacturer, and the like.

In the definition of what use means, section 33 (1) (a) starts off: "Any person who shall, in commerce, use," and so forth. On page 45, use of the mark on goods requires that the goods be sold or transported in commerce, as set forth in line 8. On services, however, it would seem to me, as Mr. Beesley has pointed out, somewhat indefinite as to whether a newspaper carrying an advertisement of a service might not be using the mark in the sense of lines 9 and 10, so I propose this amendment in line 9, page 5, of the committee print: After "when", insert "it is."

Mr. LANHAM. So it will read "when it is used or displayed."

Mr. BAILEY. And in line 10, after "services", insert "and the services are rendered." That would make it consistent with the first part of that same paragraph.

Mr. THOMAS QUINN BEESLEY. That is acceptable to me, Mr. Chairman. I represent the National Council on Business Mail, which is made up of the largest users of mail in the country. We feel that that clarification is correct.

Mr. LANHAM. Is not that really the intent of that, Mr. Martin?

Mr. MARTIN. Precisely. There is no objection to it that I can see. Mr. LANHAM. Then without objection we will consider that done. Mr. FENNING. That again means that you are registering as a trademark something which is merely an advertisement.

Mr. LANHAM. Of course, that all reverts to the discussion we have been having on it.

Mr. FENNING. If you leave "or advertising" in, then you are registering an advertisement and not something which is applied to the goods.

Mr. LANHAM. There seems to be some controversy as to that. We will just have to ponder and deliberate on it.

Mr. FENNING. I have a question of definition on that page, on the following line.

Mr. LANHAM. All right. Then I have one or two here that I want to bring to your attention.

Mr. FENNING. "Continuous use" is used frequently throughout the bill. There is no definition of "continuous use." Obviously, continuous use does not mean use which is something which happens every 5 minutes or every day, if necessary. I would therefore suggest that you insert, after line 10 on page 45: "Continuous use means substantially continuous use without such lapses as will amount to abandonment." I think that is the intent of continuous use, something which is not abandoned.