Mr. CARTER. I may not be able to stay through and I would like to bring up one thing of interest to me. It seems in this latest committee print, the term "collective" has been eliminated entirely. You will remember that we saved a good deal of time in getting through a law on that some time ago.

Mr. LANHAM. That is page 6, section 4.

Mr. CARTER. We got a law after a good many years, calling for registration of collective marks, and it is working out fairly well.

Mr. LANHAM. The various organizations like the California Fruit Association, and things like that.

Mr. CARTER. That is working very well, and conforms to our treaty obligations as well.

Now, the proponents of this bill have had collective marks in here. until I think this last draft. They now apparently bring them in under the head of certification marks and I think that some collective marks may classify as certification marks. For instance, I registered the word "Sheffield" for the cutlery people in England. Now, nobody over there certifies as to that word but the cutler's company does have a jurisdiction whereunder they may prevent the unlawful use of "Sheffield."

Possibly they could not qualify today under this new section and I do not see why we can't have a collective mark without the attribute of certification and I would like to hear from Mr. Martin or someone as to just why the change has been made.

Mr. LANHAM. I recall we passed a law on that subject and we had hearings about it before our committee, and I think that there is a law on the books now, is there not?

Mr. CARTER. Yes.

Mr. LANHAM. Is it repealed in this?

Mr. CARTER. Not in so many words but apparently it has been limited to a mark to which there is some certification service.

Mr. SCOTT. Would that objection be cured by changing page 44, line 24, by adding the phrase after the word "owner" to read "the owner or owners"? I fully understand what you have in mind.

Mr. MARTIN. Mr. Chairman, I can explain what motivated the trade-mark committee of the American Bar Association to amend this act to its present form.

The committee felt that there were only three kinds of marks; one a trade-mark; two, a service mark; and three, a certification mark, and the amendment of 1938 which provided for the registration of collective marks in reality was an amendment which provided for the registration of certification marks.

Now, this term "collective mark" is a word which appears in some of the conventions, international conventions, that is true, but it does not appear as I understand it in the British Trade Mark Act, and until 1938 it did not appear in the American Trade Mark Act.

The committee felt that it was esssential and they spent a great deal of time on trying to work out a plan which would clarify this use of the term "collective," that it was essential that our trade-mark act specify clearly and definitely the types of marks that were in existence, and use the proper terms for those types of marks.

Now, it so happens that in the old draft, association, collective, and certification marks were all grouped together, in section 4.

Now, the committee felt that that was a mistake, because you can have an association trade-mark, and there was no reason, or no rhyme or reason to group an association mark with solely the certification mark, and the same thing is true with what is known as a collective. A collective organization might well have a trade-mark and why should that term be used as a type of a mark, when it is more or less used to describe an organization, that is what it describes, it describes an organization.

That organization might have a trade-mark and it might have a service mark or it might have a certification mark.

Those are the only three kinds of marks that I know of that exist. To use the term "collective" as applied to a specific kind of a mark is an inaccurate way to use the term, because it might apply to any one of these three types of marks.

Mr. LANHAM. If we were considering it de novo, of course that would be more forceful that it is under the present circumstances, when we have a law upon our statute books with reference to the collective marks, emanating from this committee, by inference here we might be repealing that law.

Mr. MARTIN. No.

Mr. LANHAM. And I recall that many organizations came here, I think many representatives of the California fruit organizations or representatives of the Wisconsin or other dairy organizations, and representatives of southern lumber organizations, and so forth, and they made such a showing before the committee that we passed a law.

Mr. MARTIN. I did not quite finish. I intended to also say this, that this draft is really a reprint, and in no way destroys that type of mark, it merely gives another name to it, it gives the name which we think is recognized for that, that is a certification mark.

That is, a certification mark will do everything which a collective mark will do under the 1938 provision.

Mr. LANHAM. But Mr. Carter has made the objection that some marks which could now be registered under the law that we enacted would not be able to qualify for certification under the terms of this proposal. Am I correct in that understanding?

Mr. CARTER. Yes.

Mr. MARTIN. The only illustration he gave was the Sheffield illustration, and clearly under that demonstration it would be registerable under this act as a certification mark.

Mr. CARTER. It says, "certified by the owner." These goods are not certified by the owner.

Mr. LANHAM. I think that you were here, Mr. Rogers, when we had this up before.

Mr. ROGERS. I was, and I would like to say that this language in the draft was very carefully chosen, and our foreign friends talk of collectivists, and they are a very loose organization, and they do not certify anything, but the people in the district get together, and they have a syndicate, and they have a trade-mark, and they call them collective marks.

It is a term that is not known to our law, but it fits some situations that we have in this country. The word "Association" was put in there because the labor unions wanted protection for their union labels,

which the courts for many years held were not trade-marks, and probably they are technically not certification marks.

A certification mark is a different thing; that originated in England in about 1905 and 1906, and they passed a statute over there permitting the registration of certification marks.

We wanted to word this section to catch union labels, to catch the marks of collectivists, even if we did not really know what they were, it was a common terminology.

Now, if you limit it to certification I am afraid that you are going to exclude or apparently exclude some marks that ought to be included, and probably by implication will repeal the statute that was put through here in 1938, permitting the registration of these collective marks.

Mr. LANHAM. That was my thought, that we would be inferentially repealing that.

Mr. FENNING. That statute is not repealed inferentially; it is in

fact listed here.

Mr. LANHAM. I made that inquiry a moment ago, and I understood it was not.

Mr. MARTIN. All trade-marks legislation is repealed.

Mr. FENNING. It is page 47, line 18.

Mr. MARTIN. But that does not affect the marks listed under those acts.

Mr. LANHAM. It would prevent them from getting such marks thereafter.

Mr. MARTIN. That is right.

Mr. FENNING. That is on page 47, line 18, that is June 10, 1938. Mr. LANHAM. Personally, of course, we want these trade-marks for the protection of the people entitled to the protection, and the Congress has already determined by statute that these organizations are entitled to these collective marks, and I would certainly hesitate to be making any recommendation from this committee, that would abrogate a right that has been given them by law, and it was considered in hearings, especially since they are not here, to be heard. Mr. T. E. ROBERTSON. I think that Mr. Rogers' position is absolutely correct in that matter. Mr. Rogers and I have both taken part in international conventions, and the present Commissioner has also. Mr. Rogers has asked you, and I believe the present Commissioner asked you to put the word "collective" in there, in orderand I think the present Commissioner used the words-in order to show good faith in connection with our international treaties, and that it ought to go in there, there is no doubt in my mind.

Mr. MARTIN. Will you hear me just once more, Mr. Chairman ? Mr. LANHAM. Yes; Mr. Martin.

Mr. MARTIN. I consider this to be a very important phase of this trade-mark legislation. I have no objection whatever to putting the word "collective" in the act; I have no objection to that, but if it goes in I ask that it be defined.

The reason I am saying that is because this matter has received very serious attention. Nobody-I have talked to any number of people, and I can find nobody who can tell me what a collective mark is.

Mr. LANHAM. What definition is there of it in the law that we passed?

Mr. MARTIN. There is no definition and nobody knows what it is. Mr. LANHAM. One at a time, so the reporter can get it.

Mr. MARTIN. Now, in considering how to eliminate that indefiniteness in the amendment, the American Bar Association committee came to the conclusion that it was not necessary to use the word "collective," but if the three types of marks, and a collective mark, as I understand it, is a certification mark, that if those three types of marks were clearly defined in the act, then there could be no dispute as to what kind of a mark was to be registered. The definition of a person who can register a mark is defined in the act, section 46, page 43:

The term "person" and any other word or term used to designate the applicant or others entitled to a benefit or privilege or rendered liable under the provisions of the act includes a juristic person as well as a natural person. The term “juristic person" includes a firm, corporation, union, association— There it is expressly provided, and the Association can register any one of these three kinds of marks

or other organization capable of suing and being sued in a court of law. Now, the word "collective" is not used there. Perhaps it would be satisfactory to Mr. Robertson to include the word "collective" or "collectivity"; I don't know what it is.

Mr. LANHAM. In H. R. 5461, introduced on July 31, of this year, by me, which was sent to me by some of you gentlemen as recognizing, or being the best thought with reference to a trade-mark law at that particular time, there on page 43 we have what the term "service mark" means, and we have what the term "collective mark" means and what the term "certification mark" means and what the term "association mark" means.

Then a description of all of them together, and so forth, and so it was evidently intended at that time to retain them.

Mr. MARTIN. Would you let me just speak for a moment on that? I really feel very strongly about this, and I will appreciate if you will give me a chance to explain just exactly what it is.

Mr. LANHAM. Exactly; my only attitude is this:

That personally I would feel very, very reluctant to be undoing something which we have heretofore done and recently, through legislation emanating from this committee.

Mr. MARTIN. Now, we tried, Mr. Chairman, not to undo anything which you had done, but we tried to pin down what you had done, so that there could be no misunderstanding as to what you had done.

May I state it that way; we are not destroying anything that you did, but we are putting it in the act in language which is clearly defined and understandable.

Mr. LANHAM. By repealing this act that we have passed back there, by terms, thereby you stop the operation of it subsequent to the time of this enactment.

Mr. MARTIN. We stop the operation of all trade-mark legislation, not only that but all of it.

Mr. LANHAM. I understand.

Mr. MARTIN. And we substitute in place of it a provision for the registration of a certification mark which is just as broad as that possibly can be, or could possibly be, construed.

Mr. LANHAM. Well, the statement has been made here to the committee that some of those that are entitled to registration, if the law would be passed, would not be entitled to registration because they could not make such certificate.

Mr. MARTIN. Now, let me see if I can explain that.

Now, first I want to discuss the definition which appears in H. R. 5461, that appears on page 43, and the definition of a collective mark which is given on that page, page 43, of the bill is this:

The term "collective mark" means a mark lawfully used by two or more persons.

Now, I cannot find anybody that understands what that means. It does not limit, and it does not define, and you cannot put your finger on it, and you cannot say, "Well, that means this kind of a mark,” because it is just loose language.

Mr. LANHAM. Of course, in looking to the legislative intent there, you would go back to the hearings, and to the debate with reference to it when it was enacted, and we did have hearings on that before this committee that rather explained what was in view from the legislative angle.

Mr. SIMPSON. Would not that mean a concurrent use; that definition?

Mr. MARTIN. Yes; it might be any kind of a mark.

Mr. CARTER. Mr. Chairman, the term "collective mark" as Mr. Rogers pointed out, is something that probably originated in Europe but it has been on our statute books in the form of a treaty and convention, since at least 1911. We finally did get it into the law, in the same terms that it is in the convention and the original law was solely for the purpose of giving effect to that convention.

We later amended that so that our own citizens could get the benefit of that collective mark registration.

Now, in my opinion, a collective mark is a much broader thing than a certification mark. I think it is perfectly possible, and I think of my own knowledge I know of marks that are collective marks but which cannot properly be called certification marks.

I would say that a collective mark is any mark that is lawfully used on the products of two or more persons. I think that this definition in 5461 is too loose, but I think wherever you have a mark which is lawfully used on the product of two different enterprises, that is a collective mark, and whether you want to register all such marks is something else, but you may have two lumber factories, and each producing lumber, and they may agree through a selling company to sell the produce of both of those companies as under one mark.

Now, Mr. Martin referred to the broad language in this act of who may register, but we had very broad language in the 1905 act, whereby everybody thought, and the original commentators on the law said that any association could register a mark.

Well, when it came to a test case, the Patent Office said no, the association cannot register a mark unless it itself uses the mark.

Well, in many of these cases the goods were sold by the producers, and they all belonged to this association and the producers could not register because they did not have exclusive use, and the association could not register because it did not use it all, and so those marks. were denied registration until your law went through.