For the purposes of this section, the country of origin of the applicant is the country in which he has a bona fide aud effective industrial or commercial establishment and, in the case of associations, the country in which the association has its domicile or its principal office. (d) An application for registration of a mark under sections 1, 2, 3, 4, or 23 of this Act filed by a person described in paragraph (b) of this section who has previously duly filed an application for registration of the same mark in one of the countries described in paragraph (b) shall be accorded the same force and effect as would be accorded to the same application if filed in the United States on the same date on which the application was first filed in such foreign country: Provided, That— (1) the application in the United States is filed within six months from the date on which the application was first filed in the foreign country; (2) the application conforms as nearly as practicable to the requirements of this Act, but use in commerce need not be alleged; (3) the rights acquired by third parties before the date of the filing of the first application in the foreign country shall in no way be affected by a registration obtained on an application filed under this subsection (d); (4) nothing in this subsection (d) shall entitle the foreign applicant to sue for infringement of his mark prior to the date on which his mark was registered in this country unless the registration is based on use in commerce. (e) A mark duly registered in the country of origin of the foreign applicant may be registered on the principal register if eligible, otherwise on the supplemental register herein provided. The application therefor shall be accompanied by a certified copy of the application for or registration in the country of origin of the applicant. (f) The registration of a mark under the provisions of paragraphs (c), (d), and (e) of this section by a person described in paragraph (b) shall be independent of the registration in the country of origin and the duration, validity, or transfer in the United States of such registration shall be governed by the provisions of this Act. (g) Trade names or commercial names of persons described in paragraph (b) of this section shall be protected without the obligation of filing or registration whether or not they form parts of marks. (h) Any person dsignated in paragraph (b) of this section as entitled to the benefits and subject to the provisions of this Act shall be entitled to effective protection against unfair competition, and the remedies provided herein against infringement of trade-marks shall be available so far as they may be appropriate in repressing acts of unfair competition. (i) Citizens or residents of the United States shall have the same benefits as are granted by this section to persons described in paragraph (b) hereof. TITLE X-CONSTRUCTION AND DEFINITIONS SEC. 45. In the construction of this Act, unless the contrary is plainly apparent from the context The United States includes and embraces all territory which is under its jurisdiction and control. The word "commerce" means all commerce which may lawfully be regulated by Congress. The term "principal register" refers to the register provided for by sections 1 to 22 hereof, and the term "supplemental register" refers to the register provided for by sections 23 to 28 hereof. The term "person" and any other word or term used to designate the applicant or other entitled to a benefit or privilege or rendered liable under the provisions of this Act includes a juristic person as well as a natural person. The term "juristic person" includes a firm, corporation, union, association, or other organization capable of suing and being sued in a court of law. The terms "applicant" and "registrant" embrace the legal representatives and successors and assigns of such applicant or registrant. The term "Commissioner" means the Commissioner of Patents. The term "related company" means any person who controls or is controlled by the registrant or applicant for registration in respect to the nature and quality of the goods or services in connection with which the mark is used. The terms "trade name" and "commercial name" include individual names and surnames, firm names and trade names used by manufacturers, industrialists, merchants, agriculturists, and others to identify their businesses, voca tions, or occupations; the names or titles lawfully adopted and used by persons, firms, associations, corporations, companies, unions, and any manufacturing, industrial, commercial, agricultural, or other organizations engaged in trade of commerce and capable of suing and being sued in a court of law. The term "trade-mark" includes any word, name, symbol, or device or any combination thereof adopted and used by a manufacturer or merchant to identify his goods and distinguish them from those manufactured or sold by others. The term "service mark" means 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 and includes without limitation the marks, names, symbols, titles, designations, slogans, character names, and distinctive features of radio or other advertising used in commerce. Each of the terms "collective mark" or "certification mark" means a mark used upon or in connection with the products or services of one or more persons other than the owner of the mark to certify or indicate regional or other origin, material, mode of manufacture, quality, accuracy or other characteristics of such goods or services or to indicate a membership in an association or other organization or that the work or labor on the goods or services was perfrmed by members of a union or other organization. The term "mark" includes any trade-mark, service mark, collective mark, or certification mark entitled to registration under this Act whether registered or not. For the purposes of this Act a mark shall be deemed to be used in commerce (a) on goods when it is placed in any manner on the goods or their containers 'or the displays associated therewith or on the tags or labels affixed thereto and the goods are sold or transported in commerce and (b) on services when it is used or displayed in the sale or advertising of services and the services are rendered in commerce. A mark shall be deemed to be "abandoned"- (a) When its use has been discontinued with intent not to resume. Intent not to resume may be inferred from circumstances. Discontinuance of use for two consecutive years shall be prima facie abandonment. (b) When any course of conduct of the registrant, including acts of omission as well as commission, causes the mark to lose its significance as an indication of origin. The term "colorable imitation" includes any mark which so resembles a registered mark as to be likely to cause confusion or mistake or to deceive purchasers. The term "registered mark" means a mark registered in the United States Patent Office under this Act or under the Act of March 3, 1881, or the Act of February 20, 1905, or the Act of March 19, 1920. The phrase "marks registered in the Patent Office" means registered marks. The term "Act of March 3, 1881", "Act of February 20, 1905", or "Act of March 19, 1920", means the respective Act as amended. A "counterfeit" is a spurious mark which is identical with, or substantially indistinguishable from, a registered mark. Words used in the singular include the plural and vice versa. The intent of this Act is to regulate commerce within the control of Congress by making actionable the deceptive and misleading use of marks in such commerce; to protect registered marks used in such commerce from interference by State, or Territorial legislation; to protect persons engaged in such commerce against unfair competition; to prevent fraud and deception in such comerce by the use of reproductions, copies, counterfeits, or colorable imitations of registered marks; and to provide rights and remedies stipulated by treaties an ! conventions respecting trade-marks, trade names, and unfair competition entered into between the United States and foreign nations. TITLE XI--REPEAL OF PREVIONS ACTS SEC. 46. (a) This Act shall be in force and take effect one year from its enactment, but except as otherwise herein specifically provided shall not affect any suit, proceeding, or appeal then pending. All Acts and parts of Acts inconsistent herewith are hereby repealed effective one year from the enactment hereof, including the following Acts insofar as they are inconsistent herewith: The Act of Congress approved March 3, 1881, entitled "An Act to authorize the registration of trade-marks and protect the same"; the Act approved August 5, 1882, entitled "An Act relating to the registration of trade-marks"; the Act of February 20, 1905 (U. S. C., title 15, secs. 81 to 109, inclusive), entitled "An Act to as a or affected by t of June 20, authorize the registration of trade-marks used in commerce with foreign nations or among the several States or with Indian tribes, and to protect the same", and the amendments thereto by the Acts of May 4, 1906 (U. S. C., title 15, secs. 131 and 132; 34 Stat. 169), March 2, 1907 (34 Stat. 1251, 1252), February 18, 1909 (35 Stat. 627, 628); February 18, 1911 (36 Stat. 918), January 8, 1913 (37 Stat. 649), June 7, 1924 (43 Stat. 647), March 4, 1925 (43 Stat. 1268, 1269), April 11, 1930 (46 Stat. 155); Act June 10, 1938 (Public, Numbered 586, Seventyfifth Congress, ch. 332, third session); the Act of March 19, 1920 (U. S. C., title 15, secs. 121 to 128, inclusive), entitled "An Act to give effect to certain provisions of the convention for the protection of trade-marks and commercial names made and signed in the city of Buenos Aires, in the Argentine Republic, August 20, 1910, and for other purposes"; and the amendments thereto, including Act June 10, 1938 (Public, Numbered 586, Seventy-fifth Congress, ch. 332, third session); and section 526 of the Tariff Act of 1930 (U. S. C., title 19, sec. 1526), provided that this repeal shall not affect the validity of registrations granted or applied for under any of said Acts prior to the effective date of this Act, or rights or remedies thereunder except as provided in sections 8, 12, 14, 15, and 47 of this Act; but nothing contained in this Act shall be construed as limiting or restricting any statute in force on the effective date of this Act which does not relate to trade-marks, or as restricting or increasing the authority of any Federal regulatory agency except as may be specifically provided in this Act. (b) Registrations now existing under the Act of March 3, 1881, or the Act of February 20, 1905, shall continue in full force and effect for the unexpired terms thereof and may be renewed under the provisions of section 9 of this Act. Such registrations and the renewals thereof shall be subject to and shall be entitled to the benefits of the provisions of this Act to the same extent and with the same force and effect as though registered on the principal register established by this Act except as limited in sections 8, 12, 14, and 15 of this Act. Marks registered under the "ten-year proviso" of Section 5 of the Act of February 20, 1905, as amended, shall be deemed to have become distinctive of the registrant's goods in commerce under paragraph (f) of section 2 of this Act and may be renewed under section 9 hereof as marks coming within said paragraph. Registrations now existing under the Act of March 19, 1920, shall expire six months after the effective date of this Act, or twenty years from the dates of their registrations, whichever date is later. Such registrations shall be subject to and entitled to the benefits of the provisions of this Act relating to marks registered on the supplemental register established by this Act, and may not be renewed unless renewal is required to support foreign registrations. In that event renewal may be effected on the supplemental register under the provisions of section 9 of this Act. Marks registered under previous Acts may, if eligible, also be registered under this Act. SEC. 47. (a) All applications for registration pending in the Office of the Commissioner at the effective date of this Act may be amended, if practicable, to bring them under the provisions of this Act. The prosecution of such applications so amended and the grant of registrations thereon shall be proceeded with in accordance with the provisions of this Act. If such amendments are not made, the prosecution of said applications shall be proceeded with and registrations thereon granted in accordance with the Acts under which said applications were filed, and said Acts are hereby continued in force to this extent and for this purpose only, notwithstanding the foregoing general repeal thereof. (b) In any case in which an appeal is pending before the United States Court of Customs and Patent Appeals or any United States Circuit Court of Appeals or the United States Court of Appeals of the District of Columbia or the United States Supreme Court at the effective date of this Act, the court, if it be of the opinion that the provisions of this Act are applicable to the subject matter of the appeal, may apply such provision or may remand the case to the Commissioner or to the district court for the taking of additional evidence or a new trial or for reconsideration of the decision on the record as made, as the appellate rt may deem proper. 48. Section 4 of the Act of January 5, 1905 (U. S. C., title 36, sec. 4), Jed, entitled "An Act to incorporate the National Red Cross", and section t of June 15, 1916 (U. S. C., title 36, sec. 27), entitled "An Act to Boy Scouts of America, and for other purposes", and the Act (U. S. C., title 22, sec. 248), entitled "An Act to prohibit the e coat of arms of the Swiss Confederation", are not repealed .ct., SEC. 49. Nothing herein shall adversely affect the rights or the enforcement of rights in marks acquired in good faith prior to the effective date of this Act. SEC. 50. If any provision of this Act or the application of such provision to any person or circumstance is held invalid, the remainder of the Act shall not be affected thereby. Mr. LANHAM. The bill, if enacted, does not take effect for a year. It has been our thought that if we could get a basic trade-mark statute superseding the ones we have scattered through so many statutes today, that it could be amended as the practice would indicate the necessity for amendment, and that it would make for progress in the character of the work, in which I assume that most of you who are here today are interested. I personally have no interest in any trade-mark under the shining sun and have been working on this matter as a labor of love in an effort to be helpful to you gentlemen of the profession. This particular hearing is restricted to certain amendments offered with reference to one particular feature of this bill, and the reason we are so restricting these hearings, is that we do not want to impose upon those interested in trade-mark legislation generally, all over the country, to have to undergo the necessity of coming to two long sets of hearings, one in the House of Representatives and one in the Sentae. Any other matters which may be in controversy, in addition to the one that we are to consider specifically at this hearing, will be considered at the hearings in the Senate. For instance, the Department of Justice was interested in the consideration of certain amendments. I have had conferences with Mr. Clark, who has assisted Mr. Arnold as Assistant Attorney General in that particular capacity, and it is quite agreeable to him for their amendments to be presented at the Senate hearing and to restrict the hearing here to these specific things. We, of this committee, those of us who can, will be glad to attend and be helpful at any hearings that the Senate committee may hold, if and when this bill has passed the House, as it has done on two or three occasions, so we are not seeking in any way to block presentation of any further amendments by restricting in this committee, the hearing to these particular amendments, because ample opportunity will be had in the Senate. We are trying to save time and expense for you gentlemen, in order that it may not necessitate so many trips to Washington for you. (Discussion off the record.) Mr. LANHAM. May I make the further statement that shortly after this bill was introduced, quite a number of typographical errors were discovered. Mr. Frazer, of the Patent Office, called attention to a number of them. They are purely typographical and the committee has already authorized the correction of those typographical errors in the bill, so no reference need be made to them in our discussion here this morning. I think it would be well at this point, to place in the record, these typographical amendments, and without objection, they will be placed in the record at this point. They have already been adopted. (The typographical amendments referred to are as follows:) Page 7, line 3, insert a comma after the word "applicable.' Page 9, line 8, insert an apostrophe before the final "s" in "registrants" and strike out the comma after that word. Page 18, line 7, strike out the comma after "incontestable" and insert a colon; capitalize and italicize the word "provided"; strike out the colon and insert a comma; add "That —”. Page 18, line 15, strike out "that". Page 23, line 10, after "of" insert "the". Page 23, line 12, strike out "a", first occurrence, and insert "the". Page 27, line 19, after "additional" insert a comma. Page 28, line 10 strike out "or", first occurrence, and insert "of". Page 35, line 14, strike out "of" and insert "for". The official title. of this court is "United States Court of Appeals for the District of Columbia." Page 36, line 4, strike out "or" and insert "of". Page 39, lines 24 and 25, change all capital letters to lower case. strike Page 48, line 23, strike out the semicolon and insert a comma. Page 48, line 24, after "including" insert "the" and after "Act" insert "of". Page 49, line 2, before "provided" change the comma to a colon; capitalize and italicize "provided"; insert a comma after "provided;' capitalize "that". Page 50, line 16, insert "Patent" before "Office"; strike out "of the Commissioner." Page 51, line 6, strike out "of", second occurrence, and insert "for". Mr. LANHAM. This meeting was called specifically for Mr. Vanderbilt and Mr. Savoy, with reference to the amendments they have suggested, and so I will ask them to determine the order in which they will appear. STATEMENT OF ARTHUR T. VANDERBILT Mr. VANDERBILT. My name is Arthur T. Vanderbilt of Newark, N. J., and I am a director of, and counsel for, Pepsi-Cola Co. I want to express my appreciation, if I may, of the courtesy of the committee in affording us this hearing, realizing how busy you are, and I will try and restrict my argument to the narrowest limit and, therefore, I will refer to my notes. (Discussion off the record.) Mr. VANDERBILT. The first point that I would like to deal with concerns the danger and unfairness of extending opposition proceedings to trade-marks which are already on the register. Section 12 (c) of the bill, which you will find on page 15, provides: A registrant of a mark registered under the provisions of the act of March 3, 1881, or the act of February 20, 1905, may at any time prior to the expiration of the registration thereof, upon the payment of the prescribed fee, file with the Commissioner an affidavit setting forth those goods stated in the registration on which said mark is in use in commerce, and that the registrant claims |