Mr. LANHAM. Then we will just assume that is satisfactory. Now, a suggestion has been made which, in the interests of dispatch and saving time here, might be helpful. Mr. Martin has made the suggestion that we consider the committee print, which is 5461 as amended by the Bar Association recommendations. That is correct, isn't it?

Mr. MARTIN. With the slight exceptions I have mentioned.

Mr. LANHAM. With the exception of section 29, and this other we have gone over?

Mr. MARTIN. Yes.

Mr. THOMAS E. ROBERTSON. Mr. Chairman, section 29 was not an exception. It was adopted by the American Bar Association and has not been rescinded.

Mr. LANHAM. I understand that from Mr. Bailey, but at the Indianapolis meeting, except for the two provisions to which attention has been called, the American Bar Association adopted this committee print?

Mr. CARTER. Yes.

Mr. MARTIN. That is right.

Mr. PоHL. Mr. Chairman, on page 5 of the committee print in subsection (e) commencing in line 18, there has been an attempt to incorporate an American Bar Association amendment, namely, the words "or misdescriptive." You will find those words now in lines 19 and 20. They should, according to the American Bar Association resolution, be incorporated or inserted in line 21 after the word "descriptive."

Mr. FENNING. They should appear at both places.

Mr. POHL. No; they should not appear in both places, Mr. Fenning. Mr. MARTIN. These were corrections I had in mind, Mr. Chairman. Mr. LANHAM. I may say in this regard that there are some typographical errors, and I am just trying to get the best procedure. There are some corrections to be made, typographical and otherwise.

Mr. PоHL. The specific suggestion is that in the committee print in lines 19 and 20 the words "or misdescriptive" be deleted.

Mr. LANHAM. Yes. Well, we are going to come to that. We are going to come to all those questions on the basis of what I am trying to arrive at now as a predicate for your consideration.

Mr. PоHL. Very good, sir.

Mr. LANHAM. It has been suggested, leaving out for the moment section 29, which we can discuss later, that we consider the committee print, which is unnumbered here, which is H. R. 5461, with the recommendations of the American Bar Association, except as heretofore indicated; that we consider amendments to this committee print, and then whatever may be adopted with reference to the committee print, insofar as it varies from S. 895, be inserted as amendments to S. 895 from the parliamentary angle.

Now, as a basis for consideration-and it seems to me we can save the time of you gentlemen in that regard-is it agreeable that we take the committee print, and then without going over it section by section, we take the suggested amendments, and so forth?

And I think we should start out first in this way-in view of the fact that Mr. Martin says there are some typographical and printing errors, we should get those suggestions from him, first. Is that agreeable? Then we will proceed that way.

Mr. Martin, will you, on the committee print, indicate certain errors in the print to which you have referred, starting along with the first of it, and proceeding page by page.

Mr. MARTIN. Page 4, line 23, the word "or" should be changed to the word "of."

Mr. LANHAM. The word "or," before "the goods"?

Mr. MARTIN. That is right. That should be changed to "of."

Mr. LANHAM. Without objection; that is purely typographical. Mr. MARTIN. Page 5 and 6, the correction which Mr. Pohl noted a minute ago in lines 19 and 20, strike the words "or misdescriptive," following the word "descriptive," and in line 21, following the word "descriptive," add the same words, "or misdescriptive."

Mr. PLAUCHÉ. What line was that?

Mr. LANHAM. Line 21, after the word "descriptive," add "or misdescriptive." Does that meet your objection, Mr. Pohl? Mr. PоHL. Completely, sir.

Mr. LANHAM. All right. The next?

Mr. FRAZER. Mr. Chairman, may I ask a question, there. Mr. Martin, is it the committee's intention that a misdescriptive mark should be registerable?

Mr. MARTIN. The words "or misdescriptive" were used in connection with geographically descriptive words, I appreciate that. Mr. FRAZER. NO; but I am referring to lines 19 and 20.

Mr. MARTIN. Yes.

Mr. FRAZER. Why are you deleting those words there?

Mr. MARTIN. Because they did not appear in the draft which was approved by the American Bar Association. That is the reason we are deleting them here.

Mr. FENNING. They should be put in, shouldn't they?

Mr. FRAZER. I should think so.

Mr. POHL. They should not be put in.

Mr. LANHAM. What objection is there to leaving them in, or is there any?

Mr. POHL. Mr. Chairman, may I be heard on that point?

Mr. LANHAM. Yes; just as soon as Mr. Martin answers this question. Mr. MARTIN. I think there is a good reason for leaving them out, Mr. Chairman.

Mr. LANHAM. Was there discussion at the American Bar Association meeting with reference to them?

Mr. MARTIN. The only reference was that the words "or misdescriptive" were inserted in line 21 at the suggestion of Mr. Frazer. Mr. Frazer is the author of that, of inserting that, and it was inserted in connection with the geographical terms which might be misdescriptive; for example, in a case where New York was used in a place other than New York-"New York" was used in Boston as a trademark. Now it might not be descriptive if it were not used for New York, don't you see, but it would be misdescriptive and be equally objectionable. Now that does not apply when you are talking about a descriptive term. Usually a misdescriptive term is registerable on that ground, that it is misdescriptive. Now it falls into a different classification when you are applying that term to a descriptive term as against a geographical term. It is quite proper when applied to a geographical term.

Mr. THOMAS E. ROBERTSON. You mean the misdescriptive term is registerable, if not deceptive?

Mr. MARTIN. Right.

Mr. PоHL. That is right.

Mr. ROGERS. As an illustration, "ivory" is applied to soap. It is a perfectly good trade-mark; but it is a descriptive term, but not as applied to soap.

Mr. FENNING. But in its secondary meaning only.

Mr. POHL. I agree with Mr. Rogers. Now the reason that no mark which when applied to the goods is merely descriptive is registerable should be obvious. Everyone should be free to use the descriptive words, because they are indispensable. There is no exclusive right in them. Such terms should be given to anyone, and I refer to Mr. Rogers' illustration. Now, ivory is descriptive only with respect to the tusks of the elephant. Ivory is descriptive only of ivory. When applied to soap it is perfectly registerable although it is misdescriptive. But the ivory for soap is certainly not descriptive of soap. It is misdescriptive of soap, but it is not deceptive.

Mr. LANHAM. You could put a description of that character to registration if you leave out "or misdescriptive" in the first instance, is that correct?

Mr. PоHL. Yes.

Mr. FENNING. The "deceptive" is in the first, under the "(1)” there.

Mr. LANHAM. What is your judgment, gentlemen? There is no controversy about the words in line 21. What about the deletion of "or misdescriptive" in lines 19 and 20?

Mr. CARTER. It seems to me the word "deceptive" in paragraph (a) at the bottom of page 3 covers the whole situation.

Mr. FENNING. Would it not cover it with respect to a geographical term also?

Mr. CARTER. Yes; I think so.

Mr. FENNING. As Mr. Frazer says, it probably ought to be in both places.

Mr. PоHL. In one place, Mr. Frazer suggests.

Mr. LANHAM. In your judgment, Mr. Frazer, as a matter of administration, you think it should be in each place, is that correct? Mr. FRAZER. I was going to suggest, Mr. Chairman, that in line 19 before the word "misdescriptive" we insert the word "deceptively." Mr. LANHAM. "Or deceptively misdescriptive"? What is your reaction to that, gentlemen?

Mr. ROGERS. There cannot be any objection to that.

Mr. MARTIN. I think it is an unnecessary repetition, because it is already covered, but I cannot see any objection to it.

Mr. LANHAM. But if, from the standpoint of administration, it would be helpful-"or deceptively misdescriptive"? Well, is there agreement on that?

Mr. STANLEY. Would "Ivory soap" be misdescriptive?

Mr. POHL. Mr. Chairman, the present act of 1905 has no such provision. The existing trade-mark law, the act of 1905, speakes of merely descriptive marks, and the only reason why descriptive marks should not be registered is that the community should be free to use descriptive marks, prima facie, at least, until they have acquired a

secondary meaning. Now by putting "or misdescriptive" in this place you will open up the doors to a new line of interpretation, and marks would become doubtful. The suggestive marks "Beechnut" for food products, "Holeproof" for hosiery, "Pussy-Willow" for silk, "Ivory" for soap, might not perhaps by any chance be deceptively misdescriptive. It leaves too much to interpretation.

Under the 1905 act these questions have not come up, and I believe it should not come up.

Mr. LANHAM. Of course, the more we simplify the administration, the more we clarify the status of the whole matter, it seems to me. And that is one reason I was anxious to have Mr. Frazer's reaction to this.

Mr. STOWELL. In paragraph (a) of this section there is a provision that deceptive marks shall not be registered. Under the practice of the Patent Office the meaning of the term as used there is very well recognized, and so far as I know there is no great question of that practice; but introduced into a section such as section (e), which deals with a different type of objection, this term "deceptively misdescriptive" introduces into the law a basis for a new type of rejection which we know nothing about, and it seems to me the sound thing to do is to leave the word "deceptive" in paragraph (a) to take care of those cases which the Patent Office has always taken care of under that word, and to eliminate the proposed phrase "deceptively misdescriptive" from line 19 of paragraph (e).

Mr. POHL. Now, Mr. Chairman, I have one more mere suggestion or remark. The situation is different with the geographical name, as Mr. Martin has pointed out. A man who makes watches in Waltham, Mass., and puts the name "Waltham" on the watches, uses that name as a geographically descriptive mark. If he moves from Waltham to Cambridge, then the name "Waltham" is no longer geographically descriptive. However, in that event under the bill as it now stands that mark would become registrable, the word "Waltham", merely because it is geographically nondescriptive.

Mr. LANHAM. It would not be deceptively used on a well-known product though, would it?

Mr. POHL. Well, it would not be deceptive on a well-known product, because the place of manufacture would perhaps in a secondary meaning of the mark not be very important. But the intent is to stop all georgraphical names, whether they happen to be geographically descriptive or whether they are not geographically descriptive, meaning that the goods come from that particular location. The important thing is the question, Is the name geographical? and that was my understanding of Mr. Frazer's objection to inserting "or misdescriptive" after "geographical."

(There was discussion off the record.)

Mr. LANHAM. Let us get this on the record: On page 5 of the committee print, after the word "or," in line 19, insert the word "deceptively"; on line 21, after the word "descriptive," insert "or deceptively misdescriptive."

Now what is the next suggestion?

Mr. MARTIN. The next difference between the committee reprint and the amendments proposed and approved by the American Bar Association appears in the last line of page 6. I do not think that

this is a material change, but I am calling it to your attention for the record. The words "including indications of regional origin" were not included in the American Bar Association committee draft.

Mr. LANHAM. Without reading the section, do they change the sense of the section in any way?

Mr. MARTIN. They do not, in my opinion, but they were not included in the American Bar Association draft, because under the definition of a certification mark, indications of regional origin were included, therefore this language was thought unnecessary; but I see no objection to including it if anybody else thinks it should be included. On the other hand, I think it is an unnecessary use of language, since it is expressly included in the definition of a certification mark.

Mr. Scorr. It is like saying "fruit, including apples."

Mr. MARTIN. Right.

Mr. ROGERS. The reasons for the inclusion of that was that some of our foreign friends, on the question of conventions, and all that sort of thing, are very jealous of their geographical indications on regional origins, as, for example, the cheesemakers, and our Ecuadorian friends with their "Panama" hats, the Cuban gentlemen with their "Habana” cigars, and all that sort of thing. They do not understand unfair competition, as we have it in this country. It does not exist in the Spanish law or in the continental law, either, so they thought it would help them greatly if there could be included a provision for registering indications of regional origins.

Mr. LANHAM. If there is no objection to including it, and to comport with the good-neighbor policy, it might be left in.

Mr. ROGERS. It would be very helpful if that could be left in.

Mr. LANHAM. Then if there is no objection we will leave it in, as in the committee print.

* on the

Mr. MARTIN. On page 17, the last line, the word "or" should be "on." Mr. LANHAM. Page 17, the last line "the same * register"?

Mr. MARTIN. Yes; that is right.

Now I call attention, Mr. Chairman, to the fact that the inclusion of 29 has thrown two section numbers off one number.

Mr. LANHAM. Yes. Of course, the section numbers can be renumbered in such bill as we may report, because we put them in as amendments anyway to the Senate bill.

Mr. MARTIN. The next correction I have is on page 34.

Mr. FRAZER. Mr. Chairman, could I interrupt to call attention to a typographical error on page 20, line 20. The word "commission" should be "commissioner."

Mr. LANHAM. "Decision of the commission" should be "the commissioner." Yes; that is a typographical error.

Mr. MARTIN. On page 34, line 18, the last word, "circuit," should be stricken; the official name of that. The name of the court is the United States Court of Appeals of the District of Columbia, or "for" the District.

Mr. FENNING. "Of" the district.

Mr. FRAZER. But it is not "circuit."

Mr. LANHAM. We will delete the word "circuit."

Mr. MARTIN. I think, Mr. Chairman, those are the only typographical corrections I have.