UNITED STATES OF AMERICA APR 29'43 Liddy, Sylvester J., care of Munn, Liddy & Glaccum, 24 West Fortieth 39 Martin, Wallace H., 60 East Forty-second Street, New York, N. Y. 30, 46, 49 Savage, Henry J., patent counsel, National Biscuit Co., 449 West Vanderbilt, Arthur T., 744 Broad Street, Newark, N. J. 18, 42, 48, 51 TRADE-MARKS WEDNESDAY, APRIL 7, 1943 HOUSE OF REPRESENTATIVES, The committee met, pursuant to notice, at 10 a. m., in the Merchant Marine and Fisheries Committee room, 219 old House Office Building, Hon. Frank W. Boykin (chairman), presiding. Present Representatives Boykin (chairman), Lanham, King, Klein, Hart, Miller, Winstead, Scott, Arends, Hale, Larcade, Busbey, and Stanley. Also present: Leslie Frazer, First Assistant Commissioner of Patents. Chairman BOYKIN. We will come to order. I want to make a little statement. Congressman Lanham is sending me out of town. He appointed me chairman of a Subcommittee of the Public Buildings and Grounds Committee and we are leaving today, a group of about six or eight of us, and since Congressman Lanham knows so much more about this than I do, and since he has presided for 5 years on this same bill, I am going to ask him to preside in my stead, and I am going to work on the other bill that he is sending me out to look over for his committee, of which he is chairman. I am going to turn the meeting over to Mr. Lanham. Mr. LANHAM. I will give a word of brief explanation. For the benefit of those present, and for the benefit of the new members who are serving on this committee, this trade-mark bill has been before us for 3 or 4 years. We have held very voluminous hearings and the bill has almost passed on one or two occasions. By that I mean, passed the House and the Senate in each of the last two Congresses, failing of final enactment on each occasion because of a technicality. In this Congress I have introduced H. R. 82, which seemed to meet with rather general favor in the discussions that we had last year, and incorporated in this are some of the amendments that had been suggested over in the Senate by the Committee on Patents. For the record will the reporter please include the bill, H. R. 82, at this point? 1 (The bill referred to is as follows:) [H. R. 82, 78th Cong., 1st sess.] A BILL To provide for the registration and protection of trade-marks used in cómmerce, to carry out the provisions of certain international conventions, and for other purposes Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, TITLE I-THE PRINCIPAL REGISTER SECTION 1. The owner of a trade-mark used in commerce may register his trade-mark under this Act on the principal register hereby established: (a) By filing in the Patent Office (1) a written application, in such form as may be prescribed by the Commissioner, verified by the applicant, or by a member of the firm or an officer of the corporation or association applying, specifying applicant's domicile and citizenship, the date of applicant's first use of the mark, the date of applicant's first use of the mark in commerce, the goods in connection with which the mark is used and the mode or manner in which the mark is used in connection with such goods, and including a statement to the effect that the person making the verification believes himself, or the firm, corporation, or association in whose behalf he makes the verification, to be the owner of the mark sought to be registered, that the mark is in use in commerce, and that no other person, firm, corporation, or association, to the best of his knowledge and belief, has the right to use such mark in commerce either in the identical form thereof or in such near resemblance thereto as might be calculated to deceive: Provided, That in the case of every application claiming concurrent use the applicant shall state exceptions to his claim of exclusive use, in which he shall specify, to the extent of his knowledge, any concurrent use by others, the goods or services in connection with which and the areas in which each concurrent use exists, the periods of each use, and the goods and area for which the applicant desires registration; (2) a drawing of the mark; and (3) such number of specimens or fascimiles of the mark as actually used as may be required by the Commissioner. (b) By paying into the Patent Office the filing fee. (c) By complying with such rules or regulations, not inconsistent with law, as may be prescribed by the Commissioner. (d) If the applicant is not domiciled in the United States he shall designate by a written document filed in the Patent Office the name and address of some person resident in the United States on whom may be served notices or process in proceedings affecting the mark. Such notices or process may be served upon the person so designated by leaving with him or mailing to him a copy thereof at the address specified in the last designation so filed. If the person so designated cannot be found at the address given in the last designation, such notice or process may be served upon the Commissioner. MARKS REGISTRABLE ON THE PRINCIPAL REGISTER SEC. 2. No trade-mark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it (a) Consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute. (b) Consists of or comprises the flag or coat of arms or other insignia of the United States, or of any State or municipality, or of any foreign nation, or any simulation thereof. (c) Consists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent, or the name, signature, or portrait of a deceased President of the United States during the life of his widow, if any, except by the written consent of the widow. (d) Consists of or comprises a mark which so resembles a mark registered in the Patent Office or a mark or trade name previously used in the United States by another and not abandoned, as to be likely, when applied to the goods of the applicant. to cause confusion or mistake or to deceive purchasers: Provided, That the Commissioner may register as concurrent registrations the same or similar marks to more than one registrant when they have become entitled to use such marks as a result of their concurrent lawful use thereof in commerce prior to any of the filing dates of the applications involved and the Commissioner or a court on appeal determines that confusion or mistake or deceit of purchasers is not likely to result from the continued use of said marks under conditions and limitations as to the mode or place of use of the goods in connection with which such registrations may be granted which conditions and limitations shall be prescribed in the grant of the concurrent registrations thereof; and concurrent registrations may be similarly granted by the Commissioner with such conditions and limitations when a court has finally determined that more than one person is entitled to use the same or similar marks in commerce. The Commissioner shall give not less than thirty days' written notice to all applicants, registrants, and users specified by any of the parties concerned of any application for concurrent registration and of the time and place of the hearings thereon. When the Commissioner decides to grant a concurrent registration the proposed registradition shall be published in the Official Gazette of the Patent Office and the application shall be subject to opposition as hereinafter provided for other applications to register marks. Concurrent registrations may be ordered by a court in an action under the provisions of section 4915, Revised Statutes, under such conditions and limitations as the court considers proper in accordance herewith. (e) Consists of a mark which, (1) when applied to the goods of the applicant is merely descriptive or deceptively misdescriptive of them, or (2) when applied to the goods of the applicant is primarily geographically descriptive or deceptively misdescriptive of them, except as indications of regional origin may be registrable under section 4 hereof, or (3) is primarily merely a surname. (f) Except as expressly excluded in paragraphs (a), (b), (c), and (d) of this section, nothing herein shall prevent the registration of a mark used by the applicant which has become distinctive of the applicant's goods in commerce. The Commissioner may accept as prime facie evidence that the mark has become distinctive, as applied to the applicant's goods in commerce, proof of substantially exclusive and continuous use thereof as a mark by the applicant in commerce for the five years next preceding the date of the filing of the application for its registration. SERVICE MARKS REGISTRABLE SEC. 3. Subject to the provisions relating to the registration of trade-marks, so far as they are applicable, service marks used in commerce shall be registrable, in the same manner and with the same effect as are trade-marks, and when registered they shall be entitled to the protection provided herein in the case of trade-marks, except when used so as to represent falsely that the owner thereof makes or sells the goods on which such mark is used. The Commissioner may establish a separate register for such service marks. Applications and procedure under this section shall conform as nearly as practicable to those prescribed for the registration of trade-marks. COLLECTIVE AND CERTIFICATION MARKS REGISTRABLE SEC. 4. Subject to the provisions relating to the registration of trade-marks, So far as they are applicable collective and certification marks, including indications of regional origin used in commerce, shall be registrable under this Act, in the same manner and with the same effect as are trade-marks, by persons, and nations, States, municipalities, and the like, exercising legitimate control over the use of the marks sought to be registered, even though not possessing an industrial or commercial establishment, and when registered they shall be entitled to the protection provided herein in the case of trade-marks, except when used so as to represent falsely that the, owner or a user thereof makes or sells the goods or performs the services on or in connection with which such mark is used. The Commissioner may establish a separate register for such collective marks and certification marks. Applications and procedure under this section. shall conform as nearly as practicable to those prescribed for the registration of trade-marks. USE BY RELATED COMPANIES SEC. 5. Where a registered mark or a mark sought to be registered is or may be used by related companies, such use shall inure to the benefit of the registrant or applicant for registration, and such use shall not affect the validity of such |