of milk and all other dairy products be protected against the substitution of imitation products of any description. We also believe that the potentiality for misleading substitution of products containing vegetable oils as and for genuine dairy products is very great. We further believe that misleading substitution would work serious injury on consumers, milk producers and the entire dairy industry. As a consequence, the Dairy Industry Committee strongly supports the maintenance and strengthening of such laws and regulations as are designed to prevent such misleading substitution.

Senator LUCAS. I take it that you do not believe that the Congress could lay down any law which would, as you say, protect the integrity of milk and all other dairy products against the substitution of imitation products of any description.

Mr. BRIGHTMAN. Controversies such as are taking place at the present time are what I am referring to in this particular case.

Any change in our present status might seriously curtail milk production still further.

Senator LUCAS. I am just asking a very frank question, which seems to me very pertinent, in view of that statement.

I ask whether you believe that the Congress should lay down any rules or regulations. You say, for instance:

We also believe that the potentialities for misleading substitution of products containing vegetable oils as and for genuine dairy products is very great.

You are making that statement because of the fact that a bill is here to repeal the tax.

Mr. BRIGHTMAN. That is right.

Senator LUCAS Now, if the tax is repealed, is there any way that we can protect you on that statement?

Mr. BRIGHTMAN. Not unless some of the amendments such as Mr. Holman has offered might be in some way an additional assistance. But I see nothing beyond that stage.

The CHAIRMAN. It has been suggested by Senator Fulbright that we amend the law so that public places which put out table spreads should post a sign that they are using oleo and should give notice of it on the

menu.

Mr. BRIGHTMAN. I believe that many States have such regulations at the present time. How effective they are, I do not know. There have been various discussions of that subject, and many of our legal people, as mentioned previously are interested.

The CHAIRMAN. The gist of that argument, as I understand it is that there is a right of imitation, if the customer knows what he is buying.

Mr. BRIGHTMAN. But how effective some of the enforcement is, is questionable, in my mind, at the present time.

The CHAIRMAN. And I think Senator Lucas is groping around to find out whether there could be an adequate system of regulation without a tax, which would permit the customer to know what he is getting. Mr. BRIGHTMAN. That is the reason we believe there should be a complete study, such as Mr. Holman mentioned, into many of these various factors and details. I don't know what the ultimate solution is, but there are many of these things that ought to be looked into much further, such as the interpretations of existing statutes of States, and so on, in order to find a solution to this.

And, as mentioned by Mr. Murray when he was here, the House committee is still studying that particular field.

I believe that anything that can be done to study what might be done in case the Congress should decide to pass such a bill as the Rivers bill, as to what protection the industry might have, should be considered.

The CHAIRMAN. Apparently there is another line of argument that goes to the effect that there is no right of imitation. That is why I have emphasized several times that if there is a legal claim to that effect, there should be a legal memorandum on the subject supplied to the committee.

(The information requested will be found on p. 287.)

Mr. BRIGHTMAN. I would prefer that some of our legal people would investigate that particular field.

Dr. Hugo Sommer, professor of dairy industry at the University of Wisconsin, testifying on this same subject before a congressional committee in 1944, stated:

Livestock is essential to maintaining soil fertility and is the most economical means for rebuilding depleted soil. We can't shift our dietary more and more to field crops without decreasing livestock products. Such a shift involves soil mining and erosion. Crops, such as soybeans, are especially bad offenders as far as erosion is concerned. This policy is not only important to a sound, permanent agriculture, but to human health. Malnutrition is widely prevalent throughout the world and especially in sections which such products as milk, meat, and eggs do not constitute an adequate part of the diet.

History has demonstrated that those countries that have developed an animal product economy, and particularly dairying, have produced the most prosperous, energetic and efficient peoples in the world. Their soil and their people have maintained a productivity which has made this possible.

We ask you to act on this legislation only with full realization that your support of such legislation may impair a vital source of essential food to the permanent detriment of the people of the United States. If you will notice, for the information of the Members of Congress I have introduced here a product table showing the many major products and the various ramifications of those products, and showing that what affects one dairy product has an effect on all of the dairy products.

The CHAIRMAN. Are there any questions?

Thank you, Mr. Brightman,

Mr. BRIGHTMAN. Thank, you, Mr. Chairman.

Senator LUCAS. May I interrupt just for a moment, to submit for the record a memorandum on that question of trade-mark right in the use of yellow color, as to whether at common law the color "yellow" could be the subject of a trade-mark?

The CHAIRMAN. Very well.

(The memorandum referred to is as follows:)

BUTTER HAS NO TRADE-MARK RIGHT TO THE COLOR OF YELLOW

One or more witnesses for the butter Interests have stated that butter has a legal, common-law trade-mark right in the color of yellow and accordingly yellow margarine cannot be made.

The chairman of the Senate Finance Committee has requested both sides to submit a legal memorandum on this alleged trade-mark right. Pursuant to that request, this memorandum is being submitted to show that under the law there is no substance whatsoever to such claim.

In the first place, it is a well-established principle that a trade-mark, when it exists, is a proprietary right and is owned by an individual, be it a person or company, to distinguish his brand from anybody else's brand. In other words, Kodak is the trade-mark of the Eastman Kodak Co. to show that the articles with this mark are the output of such company. However, cameras as a class of commodities cannot under any circumstances possess any trade-mark.

A producer or seller of butter can have a trade-mark for his brand of butter to distinguish his brand from others on the market. However, it needs no legal citation, because the point is so elementary, to show that butter as a commodity on the market cannot possess a trade-mark right.

Furthermore, an individual butter producer has no right in and to the color yellow for his brand of butter. Furthermore, all the producers of butter together cannot claim that jointly, on behalf of the entire output of the butter

industry, they possess a trade-mark right in the color yellow for a food. This is just flatly contrary to every established principle of law.

Furthermore, the law has been long settled that color alone may not be the subject of a trade-mark. To be a valid trade-mark, the device, design, or other combination sought to be sustained as a trade-mark must be capable of indicating origin or ownership of the goods. This is true under both the common law and the statutes which provide for registration of trade-marks.

The following court decisions are in point:

Leschen Rope Co. v. Broderick (201 U. S. 166), decided almost half a century ago by the Supreme Court of the United States, is a leading trade-mark case where color was depended upon to constitute a valid trade-mark. Although some of the expressions by the Court were unnecessary for decision in that case, nevertheless the following views of the Supreme Court have long been followed by other courts and the administrative bodies concerned with the administration of the trade-mark laws. At page 171, the Court said as follows:

"Whether mere color can constitute a valid trade-mark may admit of doubt. Doubtless it may, if it be impressed in a particular design, as a circle, square, triangle, a cross, or a star. But the authorities do not go further than this. In the case of Handon's Trademark (37 Chan. Div. 112), in which a trade-mark was claimed for a red, white, and blue label, in imitation of the French tricolor, for French coffee, it was held not entitled to registration under the English statute, which requires a trade-mark to be distinctive in order to be valid. The Court remarked as follows:

"It is the plain intention of the act that, where the distinction of a mark depends upon color, that will not do. You may register a mark, which is otherwise distinctive, in color, and that gives you the right to use it in any color you like; but you cannot register a mark of which the only distinction is the use of a color, because practically under the terms of the act that would give you a monopoly of all the colors of the rainbow.'

"It is unnecessary to express an opinion whether, if the trade-mark had been restricted to a strand of rope distinctively colored, it would have been valid. As already observed, the claim is much broader than this.

* * *""

In Green v. Ludford Fruit Products (39 F. Supp. 985), the district court said, at pages 986-987:

"The question of the color raises another problem. It is difficult to understand how the plaintiffs could claim a property right in the color alone. It is not subject to exclusive appropriation. Red is the natural color of several fruit drinks such as tomato and various berry juices. It is also used extensively in coloring artificially various soft drinks such as strawberry and cherry soda water. The color is nonfunctional and arbitrary, but the red shade probably possesses a certain eye appeal not present in the paler colors.

"Color alone cannot be the subject of a trade-mark. No one could claim the right exclusively to use a certain color which was but one of the many characteristics of his product, and prevent the use of that color by others who manufactured similar articles."

In Taylor v. Bostick (299 Fed. 232) the court said, at page 234, as follows: "It is a well-settled general rule of law that a trader may not monopolize a particular color, and that color alone, unaccompanied by any distinguishing sign, seal, or symbol, is not sufficient to constitute a trade-mark."

In In re W. T. Grant Co. (29 F. (2d) 877) the court said, at page 878: 66* * * It was stated by the Commissioner that mere color cannot function as a trade-mark; that it is common practice for manufacturers and traders to color their articles of trade, or parts thereof, any and all colors which judgment or fancy may dictate, for purpose of ornamentation; that the colors in such cases do not suggest to the public the idea of origin or ownership, which is the sole purpose of a trade-mark; and that it is only when colors are so impressed in a design as to suggest to the public that they are used to distinguish the goods of one manufacturer or owner from like goods having a different origin or ownership, that they may be said to function as trade-marks.

"In our opinion the Commissioner's conclusions are correct. In the case of In re Waterman Co. (34 App. D. C. 185; 18 Ann. Cas. 1033) this court considered an application for the registration of a color trade-mark for a fountain pen, which gave the color of the feed bar as red, and the portion of the reservoir or handle adjacent to the feed bar as black. Registration was denied upon the ground that a trade-mark cannot be acquired in the use of color not connected with some symbol or design, citing Re Handon's Trademark (L. R. 37 Ch. Div. 112); A. Leschen & Sons Rope Co. v. Broderick and B. Rope Co. (201 U. S. 166; 26 S. Ct.

425; 50 L. Ed. 710); and Diamond Match Co. v. Saginaw Match Co. ((C. C. A.) 142 F. 727)."

In Radio Corporation of America v. Decca Records (51 F. Supp. 493) the court said, at page 495:

"The color of the label is not functional qua color, as has been held in respect of matches with two colors, one on the head and one on the tip where they are to be struck. Cf. Diamond Match Co. v. Saginaw Match Co. (6 Cir., 142 F. 727, 729, 730).

"It seems to me, however, that it cannot properly be contended that a colored round label, affixed to the circular center of a circular disk record, is the use of color in the form of a design, as it must be to constitute a trade-mark. Cf. Leschen & Sons Rope Co. v. Broderick & Bascom Rope Co. (201 U. S. 166, 171; 26 S. Ct. 425; 50 L. Ed. 710). The circular shape of this center is inescapable. All that has happened is that a functional part of the record has been colored, not that a design has been achieved.

"This renders void the plaintiff's trade-marks, for color qua color may not be a trade-mark."

In In re Security Engineering Co., Inc. (113 F. (2d) 494) the Court of Customs and Patent Appeals said, at page 495, that:

"It is the well-settled law that for a mark to be entitled to registration it should be one which the law recognizes as being capable of distinguishing the goods of its owner from those of another.

"It is equally well settled that the validity of a mark and its right to registration may not depend upon color alone. Color may be an important feature of a valid and useful trade-mark, but color or colors alone when applied to the article as a whole, except under circumstances hereinafter particularized will not constitute a valid mark."

In International Braid Co. v. Thomas French and Sons (150 F. (2d) 142) the Court of Customs and Patent Appeals said, at page 143, that:

"Furthermore, the law is well settled that a mark, the distinguishing feature of which is partly identified by the use of a design in color, may be registered, provided, however, that the designated color is distinctive and specific. On the other hand, the law prohibits the registration of a mark which provides for the use of any color as its distinguishing feature; for the reason not only that such a mark possesses no defined feature which would tend to identify the origin of the goods, but also that the registration of such a mark would endow its owner with an implied monopoly of all the colors of the spectrum. Leschen & Sons Rope Co. v. Broderick & Bascom Rope Co. (201 U. S. 166; 26 S. Ct. 425; 50 L. Ed. 710); Lufkin Rule Co. v. Master Rule Mfg. Co. (40 F. 2d 991; 17 C. C. P. A. Patents, 1227) ; In re Johns-Manville, Inc. (55 App. D. C. 142; 2 F. 2d 844); Samson Cordage Works v. Puritan Cordage Mills (6 Cir., 211 F. 603; L. R. A., 1915 F. 1107); In re Gotham Silk Hosiery Co., Inc. (5$7 App. D. C. 266; 20 F. 2d 282)."

In view of the foregoing, it is quite clear that the color yellow or of any other color is incapable of being a trade-mark unless such color or colors form part of a distinctive design which otherwise is capable of registration. It will be noted that even where registration of a design incorporating colors is permissible, no exclusive property right in the color is thereby obtained.

It is interesting to note in this connection that butter is not the only yellow food that is consumed by man. Yellow appears in many foods which man has consumed for years. For that matter, butter is not the only yellow fat that man has consumed. While some butter people like to talk about butter being mentioned in the Bible, an investigation into the historical facts discloses that after man domesticated the cow, he consumed cow's milk, but for some time did not make of such milk, butter for his own consumption. In fact, there is evidence to show that the first use made of butter was as a grease with which wrestlers in ancient times anointed their bodies so as to aid them in their athletic contests.

However, man did eat yellow fats other than butter, such as beef fats and chicken fat. These have been the subject of human consumption for many years. For that matter, when margarine was first made and sold in the 1870's, it was made exclusively from animal fats, and from such fats the margarine derived a natural yellow color.

Yellow margarine is not something which is new today. As already stated, it was first yellow naturally, and over the period of years some yellow margarine has been made and sold.

The witness from the Food and Drug Administration described very clearly how naturally yellow margarine was in pretty common use prior to 1931, and