3628 CONGRESSIONAL RECORD-:..'SENATE APRIL 24

PosTMASTERS word. Forgetting that ever there stand­ thelr respective offices, etc., for the quarter ALABAMA eth Thine immutable law that only the ending June 30, 1944 (with accompanying Helen E. Sellers, Banks. meek finally inherit the good life, refus­ p~pers); to the _committee on Civil Ser~ice. Attie D. Hancock, Gardendale. ing to bend at the lowly gate of humility CLAIM OF J. FLETCHER LANKTON AND JOHN N. Paul B. Curtis, Glenwood. and sacrifice, he has lost the road to ZIEGELE Duncan G. Kimbrough, Hat·persville. truth and goodness and reaps in this A letter from the Comptroller General of ARKANSAS awful hour the bitter harvest of cruelty, the , transmitting, pursuant Louella Boswell, Almyra. persecution, division, and dissension. to law, his report and recommendation con­ Mary L. Cherry, Bay. From the valley of futility and despair cerning the -claim of J. Fletcher Lankton Claude Gregory, Cash. we lift our eyes to the hills of eternal and John N. Ziegele against the United States Harriet M. Shrigley, Coal Hill . . (with an accompanying report); to the Com­ verities which stab the horizon like great mittee on Claims. Erma M. Odom, Fulton. and glorious steeples pointing to the sky; CALIFORNIA for we know our help and our hope is in PAYMENT FOR AccUMULATED LEAVE DuE Gov­ William H. Frost, Etiwanda. Thee who made heaven and earth. ERNMENTAL OFFICERS AND EMPLOYEES A letter from the' President of the United INDIANA "God the All-righteous One! man hath States Civil Service Commission, transmit­ Ruth I. Perin, Glenwood. defied Thee; ting a draft of proposed legislation to pro­ Maurice G. Fougerousse, Jasonville. Yet to eternity standeth Thy Word; vide for lump-sum payments for · accumu­ Crystal B. Shaw, Markleville. Falsehood and wrong shall not tarry lated leave due to Government officers and Claude M. Bowman, Norman. beside Thee; employees at death or upon separation from KENTUCKY the service (with an accompanying paper); Give to us peace in our time, 0 Lord." to the Committee on Civil Service. Thomas E. Rite, Philpot. We ask it in the dear Redeemer's name. REPORT OF THE SECRETARY OF THE SENATE MAINE Amen. (B. Doc. No. 185) Hilda E. Sawtelle, East Wilton. THE JOURNAL A letter from the Secretary of the Senate, MISSISSIPPI On request of Mr. BARKLEY, and by transmitting, pursuant to law, his annual Irma E. Blanks, Collinsville. unanimous consent, the reading of the report for the. fiscal year ended June 30, Sallie C. Walker, Lauderdale. 1943 (with an accompanying report); ordered Journal of the proceedings of the calen-· to lie on the table and to be printed. Charles E. Elliott, Mayersville. dar day Friday, April 21, 1944, was dis­ Bessie Abernathy, Woodland. pensed with, and the Journal was ap­ FEBRUARY 1944 REPORT OF RECONSTRUCTION NEW YORK proved. FINANCE CORPORATION Luther C. Empie, Guilderland Center. A letter from the Chairman of the Board MESSAGES ~OM THE PRESIDENT of the Reconstruction Finance Corporation, OKLAHOMA Messages in writing from the Presi­ transmitting; pursuant to law, a confidential William F. Goff, Jones. dent of the United States submitting report of the transactions of the Corporation for the month of February 1944 (with ac­ SoUTH CAROLINA nominations were communicated to the companying papers); to the Committee on Norton H. Campbell, Jr., Pendleton. Senate by Mr. Miller, one of his secre­ Banking and Currency. taries. REPORT OF OFFICE OF PRICE ADMINISTRATION Thomas J. Evans, Chattaroy. EXECUTIVE COMMUNICATIONS, ETC. A letter from the Administrator, Office of Loma L. Nester, Eckman. The VICE PRESIDENT laid before the Price Administration, submitting, pursuant John E. Hafer, Elkview. to law, the eighth report of the Adminis­ Harry 0. Lockman, Helen. Senate the following letters, which were referred as indicated: tration covering the period ended December Usher A. Cobb, Kopperston. 31, 1!il43 (with an accompanying report); to Clara L. Hardy, Montcalm. FOREIGN RELATIONS OF THE UNITED STATES, the Committee on Banking and Currency. James H. Trail, Winding Gulf. 1929, VoLUMES n AND III A letter from the Secretary of State, call­ ELECTRIC POWER REQUIREMENTS OF INDUSTRIAL ESTABLISHMENTS WITHDRAWAL ing attention to the release of three vol­ umes entitled "Papers Relating to the For­ A letter from the Chairman of the Federal Executive nomination withdrawn from eign Relations of the un·ted States, 1929," Power Commission, transmitting, for the in"­ the Senate April 21 (legislative day of and stating that copies of the document edi­ formation of the Senate, a copy of its newly April 12), 1944: tion of the set (H. Doc. No. 517, 71st Cong., issued report entitled "Electric Power Re­ 2d sess.) will be available to Members from quirements of Industrial Establishments" NATIONAL HOUSING AGENCY the folding room (with accompanying pa­ 1939-42 (actual) and 1943 and 1944 (esti­ Philip M. Klutznick to be Federal Public pers); to the Committee on Foreign Rela­ mated) (with an accompanying report); to H~'using Commissioner. tions. the Committee on Commerce. AMENDMENT OF ACT GRANTING INCREASED CHAIRMANSHI~ OF COMMITI'EE ON THE COMPENSATION TO SUBSTITUTE POSTAL EM­ DISTRICT OF COLUMBIA PLOYEES The VICE PRESIDENT laid before the SENATE A letter from the Acting Postmaster Gen­ eral, transmitting a draft of proposed legis­ Senate a letter from Alpha Omega MoNDAY, APRIL 24, 1944 lation to amend an act to grant increases in Chapter of the Omega Psi Phi Frater­ compensation to substitute employees in nity, Washington; D. C., relating to the

'· 3634 APRIL. 24 ~ Mr: O'MAHONEY . . 1: have no doubt a trade-inark: ·has nothing to do with. commercial users "lawfUlly entitled to that.the matter can be disposed of, so I the grace of any government. As I said·; use,' it prior to 1905. So, when the Gov­ shall withhold my unanimous consent its or,igin is in t}!e common law; 'and, as ernment took action, the Congress placed requ~st. · many justices of the Supreme Court have in the act a provision that thereafter Mr. OVERTON. Mr. President, will said, it is a matter primarily in the keep­ commercial users could not use the red the Senator from Maryland yield to me? ing of the States. cross as a trade-mark, but that all those Mr. TYDINGS. I yield. About 30 or 40 years ago the Federal who had used it before the Government Mr. OVERTON. I express the hope Government for the first time took cog­ acted could continue to use it, as, of that the debate and the vote on the mo­ nizance of the whole trade-mark ar­ . course, the Constitution provides that a tion to reconsider will take place at an rangement, and in the act which we call man's property cannot be taken without early hour this afte:moon. We have now the Trade-Mark Act the Federal Govern­ due process of law; and without that in the Senate the Navy Depar.tm~nt ap­ ment simply provided that the user and provision incorporated in the act, the ·act propriation bill, which is extremely im­ h9lder of a trade-mark could register it would have· been invalid. · portant, and we should like very much so as to protect his right to its use from Briefly, because I do not wj.sh to tire indeed to take it up today. It was sched­ infringement by others. That is prima­ Senators who are kind enough to listen uled to be taken up today. Tomorrow I rily the essence of the trade-mark law. by an elaborate effort in support of my shall be engaged in the hearings on the The Government did not give any trade­ contention, let me state that I hold in river and harbor bill. marks. They were already in use, long my hand many decisions of the Supreme Mr. TYDINGS. Mr. President, I shall before 'that act was passed or before any Court of the United States, all of which; not consume an hour. The matter now official congressional notice was taken. without a single exception, show that a before . the Senate is one with which, I' So i~ we get that misconception out of trade-mark is a property rigb.t. I shall make bold to remark, very few Members our minds, we will understand how ·seri­ read only excerpts from three or four of of this body have much familiarity. ously the pending bill could affect the the decisions, in order to illustrate the Even the lawyers in the Senate have had rights of our citizens without the brief point. Before I . do, let me quot~ w~at very little occasion to examine the law of limiting amendment which I hope to the fifth amendment of the Constitution trade-marlts. I myself, having practiced offer. of the United States says: law for a long time, have had little or no Now let me cite a few dates, which are Nor shall private property be taken for occasion to examine into it. Since the the next things to keep in mind. I am public use, without just compensation. matter first came up I have made a very standing in front of my seat, facing the extended examination of the subject, rear of the Chamber, so that Senators on That is the Constitution. Here is and I have in my office a long line of de­ both sides of the aisle may be better able what the Supreme Court of the United cisions of the Supreme Court defining the to hear me. States has to say: origin of trade-marks. On August 2, 1864, the Geneva Con­ The right to adopt and use a symbol or a My good friend, the Senator from vention adopted a red cross with a white device to distinguish the goods or property Texas [Mr. CONNALLY], when this mat~ background as its symbol, and promul: made or sold by the person whose mark it is, ter was previously before the Senate, g·ated a general international treaty. to the exclusion of the use of . that symbol by all other persons, has been l()ng recognized said that Congress gave trade-marks to Mark you, Mr:· President, the United by the common law and the chancery courts business concerns, and therefore could States was not represented at that con­ of Engla.nd and of this country, and by the take them away. I shall later quote the vention. The convention was a Swiss statutes of some of the States. It is a prop­ Senator's language exactly. The mis:. convention which gave the Red Cross or.:: erty right- conception which I think many of us ganization its birth, and we had no part have with respect to the matter has whatsoever in it. Still quoting from Mr. Justice Millet. caused the improper consideration of the The second date to bear in mind is 1872 who is of recent vintage on our Court- amendment I offered. and the period 1872 to 1905. From 1872 for which damages may be recovered in. an First of all, Mr. President, Congress to 1905 numerous firms in the United action at law, and the violation of which will be ·enjoined by a court of equity, with does not give anyone in America a trade­ States adopted a red cross as a trade­ compensatton for past infringement.· This mark. A trade-mark is something which mark to designate the products they property and the exclusive right to its came up through common law. The manufactured. use were not created by the act of only trade-mark legislation of a na­ The third date to bear in inind is 1900. Congress. · . tional kind is the Trade-Mark Act, which The act of June 6, 1900, was passed. It is permits the holder and user of a trade­ a Federal .statute by which the American Here is one of the Supreme Court mark, which may be two or three cen:. Natiorial'Red Cross, the humane society, Justices· who, in a unanimous opiruon, turies old and in continuous use, to reg­ · was incorporated by an act of Congress. says that this property right was not cre­ ister it· so that he can stop others from : We should keep in mind the ·date wheri ated by act of Congress; that it has its using his particular label in the sale of that act was passed; namely, June 6, ramifications in the common law. goods. The Congress has given nothing. . 1900. . Mr. REVERCOMB; Mr. President-­ As the Supreme Court decisions abun­ As a matter of fact, no present Mem­ The PRESIDING OF'FICER (Mr. JAcK­ dantly show, and some of which I shall ber of the Senate and no one appearing SON in the chair) . Does the Senator read in part, trade-marks hundreds of · before any committee hearings has de­ from Maryland yield to the Senator from years old have been protected by the nied that C. B. Silver & Son, a small i West Virginia? common law long before the Geneva ; canning establishment in Havre de. , Mr: TYDINGS. I yield. Convention, which dealt with the hu­ Grace, Md., was using the red cross Mr. REVERCOMB. I wish to say to mane society known as the Red Cross, trade-mark and had used it on hundreds the able senior Senator from Maryland, and long before any legislation was of thousands of cases of food for 14 years inasmuch as he has· read the provision enacted on the subject by the American before this Government took any official of the Constitution that private property Congress. So if we can remove.that mis­ action in respect to the Red Cross. That shall not be taken for public use without conception from our minds, I think we fact is beyond dispute. just compensation, that I think one of will approach this matter with the de-· So, Mr. President, what is the situa­ the very pertinent questions in respect to gree:of fairness which the particular cir­ tion? We find that since 1876 a man. this whole mafter is that it is not one cumstances make necessary. has been using the red cross brand on involving the taking of property for pub­ . i quote the exact words used by mll his products. In 1900, for the first time, lic use but involves the .taking of prop­ good friend, the Senator from Texas, there was created by Federal law .the erty, certainly a thing of value, and the when this matter was previously before American National ·Red Cross, a most giving of it to a private organization for the Senate. · He 'said that a trade-niark worthy and fine organization. In 1905, its private use. It is not a taldng for "is an act of grace on the part of the 5 years later, an act to incorporate the .Public use by a public or Government Government of the United States; and if American National Red Cross was passed. agency. the 6overnment Wishes to take that That act forbade the commercial use of Mr. TYDINGS. Mr. President, of privilege back it can do so.'' the words "red cross" or the ·red cross course that is the case. If the Senator That is the general conception which symbol, but the act contained a grand­ will bear with me, I shall come to that we all have. I will show presently that father clause preserving the rights of very observation. It would be bad 1944 CONGRESSIONAL RECORD-SENATE 3635 enough if we took property for use by Shops, Inc., against Davis, the Court the public does not buy. That is the the Government without compensation. said: · decision of the court1;1 over and over There might be some slight color of The Courts recognize a right of property again, as the Senator well knows. "Well, the Government can do anything in a trade name which has been adopted by The trade-mark of Sun Maid raisins in a period of emergency," although that a person to denominate his business, and was sold by the Sun Maid Raisin Grow­ doctrine would be totally erroneous. has been so used by him in association there­ ers' Association to a bankers' syndicate But when we take private property and with as to acquire a special significance as for $5,600,000. give it to some private institution which the name thereof. On the balance sheet of the Coca-Cola only has the Government;s supervision In another case, May against Good­ Co. the trade-mark "Coca-Cola" is car­ or benefaction, so to speak, then the year Tire & Rubber Co., the Court said: ried at $24,960,681, as against only aggravation is much worse. Now, however, to deprive it (defendant) $4,250,000 for tangible property. In Mr. REVERCOMB. Mr. President, of the use of the mark which it has so widely other words, there is $4,250,000 worth of will the Senator yield for another ques­ popularized would not only cause it an machinery, equipment, supplies, and tion? enormous loss in trade and in goodwill, but what not; yet in its inventory the con- - The PRESIDING OFFICER. Does the would hopelessly confuse and deceive the cern claimed, in its annual balance sheet, buying public which has come to know the $24,960,681 Senator from Maryland yield to the Sen­ mark as designating the product of this de­ that represented the goodwill ator from West Virginia? fendant. behind the trade-mark "Coca-Cola." Mr. TYDINGS. I should prefer not to Take away the trade-mark "Coca-Cola," ~ so. I am afraid my friends will go to I could read hundreds of decisions. and put the product in bottles labeled lunch before I reach the pertinent ques- I have read 50 or 60 of them. There is "Berry Cola" or something else, and the tion. · no utterance by the Supreme Court to market immediately disappears. So it is Mr. REVERCOMB. Will the Senator the effect that trade-marks are not prop­ with all trade-marks. yield for one further question? erty. They are property. In one of Mr. I do not wish to labor the point by Mr. TYDINGS. I yield. Justice Holmes' decisions he ~ays that, elaboration on many other trade-marks Mr. REVERCOMB. As I understand, like any other propert~, a trade-mark concerning which I have accumulated the Senator is taking the position which · cannot be taken from its rightful owner information from balance sheets to sup­ I took· upon this question. without due process of law. port my contention. I ask that at the Mr. TYDINGS. That is correct. To digress for a moment-for I am conclusion of my remarks I may insert Mr. REVERCOMB. That is, that the trying to make this explanation as brief such pertinent data in the RECORD, for bill originally reported should not be as possible-let me tell the Senate what those who wish the sources from which passed. · some trade-marks have sold for in the I have quoted in full. Mr. TYDINGS. That is correct. market. The PRE.SIDING OFFICER. Without I have read excerpts from a recent The trade-mark "Maxwell House Cof­ objection, the data may be printed in opinion by Mr. Justice Miller, and I have fee" was bought by General Foods for the RECORD at the conclusion of the Sen­ quoted him exactly. The trade-mark is $42,000,000. What was Maxwell House ator's remarks. a property right created by the common coffee? A standard brand of coffee in the

1.944 CONGRESSIONAL RECORD-SENATE 3637 ameliorate the injustice. The Senator which the Government orders killed be­ erty it has to file condemnation proceed­ says I propose to strike down the amelip­ cause it is suspected that there is some ings and invoke the.right of eminent do­ ration and take the property from one disease in the herd of cattle or in other main, in which case witnesses are put on individual and give it to a worthy cause. cattle in a particular area. That is done the stand, and the value of the property Did I follow the Senator rightly? on the theory that we are protecting the is fixed by a jury. The owner of the Mr. REVERCOMB. No, sir; the Sen­ g,eneral welfare, and I think we might property is then compelled to sell it, but ator did not. well say that in the case of the Red Cross not until he gets the money for it in his Mr. TYDINGS. Then I misunder­ we could allow the exclusive use of this hands and all in a court of law. What stood the Senator. name 'to that institution and if there is is proposed to be done here? Colonel Mr. REVERCOMB . . I said we could to.individuals, who have used the name, Hartfield admits this is property. The not take property at all. . a financial loss which can be established Supreme Court of the United States Mr. TYDINGS. The Senator would in court, the Government itself would again and again has said it is property. be against the bill, then. stand the loss. But it is not even proposed to go to court Mr. REVERCOMB. The Senator Mr. DANAHER. Mr. President-­ first. Why? Because there is no au­ would be against the bill if it would take Mr. BARKLEY. May I ask the Sen­ thority for the court to condemn prop­ property. I still do not see why we ator a question at that point. erty for the use of a fraternal or bene­ should make a victim of the p~ople of Mr. TYDINGS. If both Senators who ficial organization. Are we to issue a leg­ this country and the public purse by are now on their feet will allow me to islative decree and wipe out a property taking the public money to pay for it. yield to them after about a minute, I right of all the people who own these Mr. TYDINGS. Then the Senator's have four short paragraphs to read of trade-marks? · position is absolutely clear and unequivo­ questions and answers that I could not I yield first to the Senator from Con­ cal, and I think he has stated not only put my hands on a moment ago. Re­ necticut, who rose first. Then I shall the law but the facts with crystal-clear member that this is a committee of the yield to the Senator from Kentucky, and accuracy. The only reason I am here other body asking questions to which then to the Senator from West Virginia, is that I am in the position of a man Colonel Hartfield, a very able lawyer, who have risen. defending a client whom he knows to be who was counsel for the Red Cross, is Mr. DANAHER. Let me first thank innocent but, because of notoriety or replying. Out of the mouths of the so­ the Senator from Maryland for his sentimentalism or whatever it may be, called opposition I can abundantly prove courtesy in yielding. in the community, is afraid the jury is my contention, if the Senators will give There are two points which have been going to find him guilty. Therefore, me their ears. I quote from the House referred to by the Senator from Georgia rather than have him hanged for a sup­ hearings: and the Senator from Maryland which posed offense, I am trying to get him off Mr. CRossER. Suppose some other society it seems to me should be met by a gen­ on a charge of petty larceny. with very good motives would come along erardenial at this point. First, the Sen­ Mr. GEORGE. Mr. President, will the and adopt the trade-mark of the Quaker, ator from Georgia says that this case is Senator from Maryland yield to me? like that the Quaker Oats people use, and on all fours with the case of the taking acquire a desirable reputation throughout the Mr. TYDINGS. I yield. ' country as a charitable or other institution of cattle by the Government in the pub­ Mr. GEORGE. It seems to me we are represented by that trade-mark, what do lic interest in order to kill those which overlooking a very clear and fundamen­ you tliink of the justice of their proceeding are diseased. Such an instance con­ tal distinction. The purpose of this bill in the courts or through Congress to deprive stitutes condemnation. That definitely is not to take away a trade-mark and the commercial people of their. right- to use is not the case in this instance, for the give it to another for commercial pur­ it? reason that the United States Govern­ poses. The theory of the bill is that That might happen, I think. ment is not condemning the use of the the Red Cross should be protected in the red cross as a trade mark even by those Mr. HARTFIELD. I would say such a stat­ who were users prior to 1905. The interest of the public welfare and the ute would be unconstitutional, in that it public good. There are innumerable sit­ would depr1ve them of it without due proc­ United States is not condemning the uations in which we have appropriated ess of law, unless that society was an inte­ use of the mark at all, either for the use money to pay for property that was gral part of the Government. It gets down and benefit of the Government or for the taken, confiscated; destroyed f()r the pub­ to that. public interest. This is a case in which lic benefit. That has happened from the Senate is acting pursuant to an time to time throughout our history, and Now following: obligation which derives from a treaty that is the theory on which this proposed Mr. C:aossER. In other words, the Gov­ which was entered into under the Con­ legislation proceeds. ernment can get the property without com­ pensating for it. stitution, and which, by virtue of its I think it would have been much better Mr. HARTFIELD. If the Government has treaty status, becomes the supreme law and much sounder if the exemption had adopted an emblem for any of its branches, of the land. Consequently it is not in been put into this measure that has been it can protect that emblem. any sense a taking for American use, and put into prior legislation, to wit, that it Mr. CaossER. You will, of course, concede since there is not a condemnation, we are should not be construed as affecting the that there might be very valuable property not required to proceed to the courts right of the holder of a trade-mark who in some trade-mark. first. Were there a- condemnation of had made continuous use of it prior to a Mr. HARTFIELD. No doubt. the use of this red cross mark as an ad­ certain date; so that those who had Here is a statement by Colonel Hart­ vertising symbol to the benefit of the established their right could be protected field, who is the principal witness for the United States, condemnation proceed­ and there would be no liability on the Red Cross and a very shrewd attorney, ings would be required. But that is not part of the Government or on the part of that the law would be unconstitutional our situation here. the Red Cross. if it took property without due process If we do not have the right to act in I do not think it would be Wise to sub­ of law. Congress seems bound to take this case to implement a political de­ ject the Red Cross to any payment what­ it anyway without due process of law, for cision which was made pursuant to con­ soever. I think it would be entirely there is no condemnation provided. stitutional political authority, as when equitable and fair and right and just to Congress cannot take a man's property, the President of the United States, and say that the Government should stand except by going into a court and con­ this body, entered into a treaty, thus any actual loss that the holder of a trade­ demning it. That is not even proposed jointly participating, pursuant to our mark could establish in a court of law, here. The Constitution is to be torn treaty-making power-- if he could establish an actual financial into a hundred shreds. It is not even Mr. TYDINGS. Will the Senator give loss, because it is the taking of a trade­ proposed to give a hearing to the people the date at that point? mark and giving to a humanitarian insti­ who are affected, and if my amendment Mr. DANAHER. Nineteen hundred tution, a world-wide institution as a is voted down they will not have a hear­ and twenty-nine-then everything the matter of fact, the use of that mark in. ing because the Government cannot be Senator from Maryland has said, and the the interest of the public welfare or the sued without the authority of "congress. point made by the Senator from Georgia, public good. Therefore, it is on all fours If the Government, as Colonel Hartfield would be sound. But that is not our case. with an appropriation to pay for cattle says, desires to condemn a piece of prop- We have a situation in which, once a XC--230 •

. 3638 CONGRESSIONAL RECORD-SENATE APRIL ~4 treaty is entered into, the treaty may trade-mark, who have held it since 1876, to take the personal property of one override the law of a State, it may even many decades before the Government individual and give it to another, not override the provisions of the constitu- got into the picture at all, will be the to the Government, not for the general tion of a State, insofar as either may be ones who will be hurt. The Government welfare or for public use. repugnant to the treaty. is not going to be hurt. Mr. GEORGE. Mr. President, I never Mr. TYDINGS. It will not override Mr. BARKLEY. I have no idea that asserted such a theory. I am sure I the Constitution of the United States. the Government is going to be hurt, un- should not want the Senator to labor Mr. DANAHER. It will override the less some pretty large damages are under that misapprehension. I think law of any State. shown. that if we look at this matter thoroughly, Mr. TYDINGS. But it will not over- Mr. TYDINGS. Penetrating theSe~- we will see that it is conferring upon rlde the Constitution of the United ator's idea--and I now see more clearly the Rec: Cross the exclusive use of this States. · what he has in mind-I do not believe particular emblem in the larger interest Mr. DANAHER. No question of the that anything that could be shown along of all the people. It is not turned over fifth amendment or of the fourteenth · the line suggested would be excluded, but to them so that they might manufacture amendment is involved in the slightest · I may say that, in my judgment, that spring beds, or any kind of Yegetable respect. Whenever, pursuant to the ex- would be a pretty intangible thing, in the soups, or anything else, under that sym­ ercise of political power of our Govern- face of a set of books which showed that bol. The Red Cross is, of course, an ment in a constitutional way, there in the year 1930, for example, the busi­ agency not strictly of the Government, should result a loss, it is just as clearly ness of such and such a concern using but we have appropriated money and established by the Supreme Court of the . the red-cross emblem was thus and so, have given money to the Red Cross to United States as any point could be-- and that year it was taken away and they use. We have relied upon the Red Cross Mr. GEORGE. Let me ask the Sen- had to use a new emblem, and in 1931 to do many things which might be prop­ ator whether there is anything that their receipts dropped 30 percent. It erly classed as governmental functions. would prevent our doing simple justice, would be pretty difficult to show that We do it whenever a storm comes and .and saying that we have enteret: into this the fact that the Red Cross was a hu­ devastates an area. \Ve turn over ma­ treaty and are going to take certain prop- manitarian organization was responsi­ terials and supplies to the Red Cross. erty rights, but that we are going to pay ble :!or their sales in 1930, but it would So I take it the Red Cross cannot be for those rights? Does the Senator know be easy to show that taking away the compared-or at least I am not willing of anything that stands in the way of the red-cross symbol in 1931 certainly played to make the comparison-to an indi­ Congress doing justice to American citi- . a major part in the loss of the receipts. vidual who has been given a commercial zens? Mr. BARKLEY. Of course, the Sena- product, or property, or thing of value Mr. DANAHER. Of course, there is tor is as familiar as I am with certain which was taken from some other indi­ not:tiing in the Constitution, or other- phases of the law under which damages vidual citizen. I think the cases are wise, that would stand in the way of our are sought in the civil courts of the different. It seems to me, however, that doing justice. All I have sought to do country. For instance, if a railroad goes when we consider the character of the was to direct the argument back from through a man's farm, or if a public road Red Cross, its functions, its duties, its the very plausible but actually untenable is projected through a man's farm, not responsibilities, and its performances, we grounds upon which it was proceeding, only the value of the land may be·taken would be justified in saying that what­ to the actual theory upon which the pro- into consideration, but the question of ever we do for the benefit of that or- posed legislation proceeds. It is on the benefits conferred upon the property by . ganiz2.tion we can properly charge to all latter point I make my interposition, and reason of the improvement can be taken the people of the country, because we that is all. I am not even ·attempting to into consideration in offsetting the would not want to charge it to the Red argue the point. I thank the Senator amount of damages to which tpe owner Cross. I agree with the Senator's orig­ from Maryland for yielding. might be entitled. inal concept. It is my consiC:ered judg­ Mr. ··TYDINGS. I yield now to the Mr. TYDINGS. That is correct. ment that in writing the legislation the Senator from Kentucky. Mr. BARKLEY. If a railroad goes committee should have said that no one - Mr. BARKLEY. In connection with through a farm, and the farmer sues else shall make use of the red cross. the Senator's amendment, which pro- later, not for the value of the land but Mr. TYDINGS. In the future. vides that suit may be brought in the for damages which h~ve resulted, then Mr. REVERCOMB. If that had been Court of Claims to establish damages the railroad company may seek to offset done we would all be in agreement re­ suffered as· the result of loss of the right the damages by showing benefits. specting the whole matter. We are to use this symbol-- Mr. TYDINGS. That is correct. reaching out here to take a property Mr. TYDINGS. Loss only to those Mr. BARKLEY. I am wondering which has been in existence for years. who used it before the treaty was rati- whether the same theory might apply Mr. GEORGE. Mr. President, since fied. to the litigation in the Court of Claims we now give the Red Cross the exclusive Mr. BARKLEY. That is on the basis now suggested. use of the symbol it seems to me that that the use of the symbol was bene- Mr. TYDINGS. I do not see any rea- very properly we might say that just ficial to the user. Does the Senator's son why it would not. compensation shall be given to anyone amendment provide, or w ~1 at does he Mr. REVERCOMB. Mr. President, who can establish a property right in the think of the idea, that the Government will the Senator from Maryland yield? trade-mark. I do not place it on any should have the riJht to offset the dam- Mr. TYDINGS. I yield. technical, legal basis, and the Senator age by any claim of benefit coi).ferred by Mr. REVERCOMB. I wish to say only from Connecticut [Mr. DANAHER] mis­ ·the use of the emblem? a word, since the matter has been understood me if he thought I said that Mr. TYDINGS. I do not follow the brought' up, regarding the reference of the taking of this symbol and giving to Senator. Does the Senator mean if the the able Senator from Georgia to our the Red Cross Society its exclusive use Red Cross as a social organization has doing simple- justice. I do not see that was on all fours with the taking of pri­ helped a private concern? simple justice is involved in this matter vate property, such as cattle that had Mr. BARKLEY. No; but assuming in the way we are about to handle it. been condemned for destruction. It is that the use of the. emblem has been If my property were taken from me by not at all on all fours, but it is a very of benefit to the user of it as a trade- the Government, which had the power similar or analogous principle. I have mark, what does the Senator think about to do it through the enactment of law, been forbidden by Federal act to make allowing the Government to show that and given to my neighbor, it might be shipments of perfectly sound and whole­ fact in mitigation of any damages? a very good thing for me to have the some property from my State into, say, Mr. TYDINGS. The Government Government reach out and take money · the adjacent State of Florida. Why? could do so, but it would be pretty hard from the public and pay me; but that Not because anything was wrong with to prove it. Let me say to the Senator would not be simple justice. Certainly my property, but because there was a that, while its motivation would be good, it would not be simple justice to the pea­ fear that certain diseases in vegetable that would, in my judgment, be a little pie of this country whom we represent and animal life might be spread. When farfetched for the following reasons: and whose interests we are to protect. the Federal Government takes property The holders of this private red-cross I do not consider that we have a right from an individual it oftentimes com- 1944 CONGRESSIONAL RECORD-SENATE 3639 pensates the individual. I do not say with his illustration of defending an in­ It is not a court which is taking Silver's that the present case is on all fours with nocent client who was about to be con­ property from him. The Congress of the that precise principle, but it seems to victed. But the wrong with the position United States is doing it. All the rules me to be analogous to it, because here taken by the able Senator is that in order of common decency demand that the we are acting-or else there is no justifi- to save his client from being convicted agency which perpetrates the wrong cation for our action-on the theory that before the jury, he reaches out and brings against an honest, patriotic, and deserv­ in the public interest and general welfare about the punishment of an innocent ing American citizen should at least in we believe the Red Cross should have man. The innocent man in this instance the same act under which it deliberately the exclusive ·usc of the symbol. is the American public who pa;y the bill. commits the wrong, give the in.dividual Mr. REVERCOMB. Mr. President, will Mr. TYDINGS. Oh, no; not at all. such redress as honest men gixe other the Senator from Maryland yield to me? Mr. REVERCOMB. Oh, yes; the men when they commit wrongs against Mr. TYDINGS. I yield. Senator is going to make the people of each other. The Red Cross cannot vote Mr. REVERCOMB. Let me say briefly the country pay for the injury. on this bill. Why sho~ld we make the h ..: reply that there is not any question Mr. TYDINGS. The jury, Mr. Presi­ Red Cross pay for the damage? about the Red Cross being a great in- dent, sits right here in this Chamber. Mr. REVER COMB. The Red Cross is stitution, a great benefactor and he1per The jury is not outside this room. As a receiving the 'Qenefit of the legislation. in time of flood and distress. But so i.:; matter of fact, Mr. Silver, in a little town Mr. TYDINGS. The Red Cross is not the Salvation Army. So are the church of 4,500 inhabitants, operates a rather composed of 10 individuals or 6 individ­ organizat~ons. So is the American. up-to-date and modern but small can­ uals. It is not merely a name. It is Legion. I saw the American Legion in ning house. He has been in business, I composed of hundreds of thousands, yes, action in the great flood on· the Ohio think, ever since 1871, when the canning of millions of individuals. But the judge River, when it was the first organization industry was born in my county. That and the jury pere is the· Senate of ·the in action there. ·of course all these or- man has his little concern in that little United States. The Senate says, "Yes, ganizations are great in the work they town. He is being tried nowhere else it js too bad, Silver. You had this trade­ perform. But are we going to set· the except here in the Senate of the United mark away back in 1876. You had it 19 precedent here of taking public money States. This is where he makes his ap­ years Qefore Congress did anything to pay ~:;orne individual for a thing of peal, so to speak, for a hearing. If my about the red cross. You came by it value which we have taken from him, amendment is stricken down, Mr. Silver honestly. The Red Cross was given sole or from several individuals, to give to is denied even a hearing. We have taken use of this emblem. But because you these worthy organizations? his property, but we will not go far are only one individual, and have no Mr. TYDINGS. If the Senator from enough to say: "At least we are going to great political influence, and because West Virginia will allow me to interject give you a chance to present any evi­ your case presents no great mass appeal, at that point, I will say that if we do not dence you have in order to substantiate we are going to treat you a little differ­ by legislative action. take an individual's your point of view." ently than we do others, such as tpose we property and give it to these organiza- Mr. REVERCOMB. Mr. President, help through theW. P. A. or the P. W. A., tions, then my answer is, "No," but if will the Senator again yield? or the National Youth Administration. by legislative act we take his property Mr. TYDINGS. I yield. We give the victims of economic distress and give it to these worthy organiza- Mr. REVERCOMB. With respect to our abundance and our aid and all that, tions, then by that same legislative act Mr. Silver, he is about to have his prop­ when we have not done any wrong to we ought at least to give the injured in- erty taken away from him, and, I say, them; but we will not even let you gp dividual his day 1n court to prove what wrongfully. into court, although we admit on the his damages are. Mr. TYDINGS. I ·agree with the floor of the Senate that what we are do­ Mr. REVERCOMB. I agree with the &enator. ing is Senator that we ought to give the in- Mr. REVERCOMB. But· the Senator not right." jured individual his d.aY in court ·and from Maryland would go one step further How can we reconcile that position let him prove his damages, but we ought and say "Since Mr. Silver's property is with our act in appropriating millions to let him prove' his damages·against the going to be taken away from him, I ask of dollars for the W. P. A., millions of one who receives the gift, not against that he be paid." But where is the dollars for the C. C. C., and $1,000,000 the country. money coming from with which to pay for damages, which we paid the other Mr. TYDINGS. If the Senator can Mr. Silver for the property which is being day to the Swiss, after some of our air­ succeed in having an amendment mak- taken from him? The money is coming planes inadvertently bombed, by acci­ ing such provision adopted, I will accept from the people of this country, not from dent, a small Swiss village. Our check it, but I cannot have such an amendment the one who receives the property taken for $1,000,000 went there within a week. adopted, and must take what I can from Mr. Silver, to wit, the Red Cross. But when it comes to one of our own obtain. Mr. TYDINGS. There, Mr. Presid'ent, citizens, we say, "We are going to do you Mr. REVERCOMB. I think the orig- is where, in my opinion, the logic of the wrong, we are going to take your prop­ inal bill which provided for the taking Senator from West Virginia does not fol­ erty, not for the Government, but for of the property from an individual and low straight down the track. I am ask­ another institution, another entity. We giving it away to another was wrong, ing the same body which takes his prop­ are going to give your property to them. however worthy the recipient organiza- erty away from him, that is the Congress We are not going to pay you a cent, and tion might be. of the United States, to provide for pay- we are not even going to let you have a Mr. TYDINGS. All the wrongs of man- ing him. If Congress perpetrates 'the hearing in any court of law." V/e do kind are perpetrated under the guise of wrong, what better agency is there under that in the name of justice, fairness, and goodness. the blue sky of heaven than Congress, democracy. Mr. REVERCOMB. Exactly so. the very body which perpetrates the Mr. REVERCOMB. Mr. President, Mr. TYDINGS. That is one reason for wrong, to redress the wrong? will the Senator yield? the downfall of civilizations. Mr. REVERCOMB. I must say that Mr. TYDINGS. I yield. Mr. REVERCOMB. Under the guise of Congress would be perpetrating a second Mr. REVERCOMB. Let me say, some­ goodness in doing this we are doing a wrong if it were to take from the people what by way of repetition, that the Sen­ wrong to the people of the country we we represent the money to provide the ator from Maryland and I are absolutely are supposed to represent here. It is payment. in accord on the first proposition. really taking the property of one indi- Mr. TYDINGS. But the point is if Mr. TYDINGS. That is correct. vidual and giving it to. another and then this man is wronged then the Senator Mr. REVERCOMB. We are entirely assessing each citizen of the country or from West Virginia and I are in agree­ in accord on the proposition that it is each taxpayer with taxes to pay for it. · ment that the wrong is done to him by wrong for the Congress to take property Mr. TYDINGS. I agree with the Sen- reason of the passage of the legislation or some other thing of value, by what­ ator from \Vest Virginia. now before the Senate. He is not ever term it may be called, and give it to Mr. REVERCOMB. I cannot, however, wronged by the Red Cross. The Red a private orgai)ization or private cor­ go so far as the able Senator from Mary- Cross cannot pass legislation. The Red poration, however praiseworthy its land goes. I was very much impressed Cross cannot take anything from Silver. functions in private life may be. I think 3640 CONGRESSIONAL RECORD-SENATE APRIL 24 that is wrong In doing so, we are going the sale of property is property and has "2. The Alien Property Custodian is au­ far beyond what has been done before, so value. We admit all that. Then we say, thorized and empowered to take such action as he deems necessary in the national in­ far as I know. "We, the Senate of the United States, terest, including-but not limited to-the Mr. TYDINGS. I agree with the Sen­ Mr. Sifver, are going to take your prop­ power to direct, manage, supervise, control, ator. erty. We are going to give it to someone or vest, with respect to: • • • Mr. REVERCOMB. But then the else, someone not connected with the "(d) Any • • • trade-mark or trade­ Senator fr-om Maryland goes one step Government. We are not going to pay mark application or right related thereto in further. He says, "I see that is going you for it, and we are not even going to which any foreign country or national there­ to happen, however, . wrong it is, so I let you go into court to show any dam­ of has any interest." am ·going to take steps to recompense ages that you may have suffered." Under this authority a large number of for­ Mr. REVERCOMB. Mr. President, let eign trade-marks have been vested in the the man who has lost his property Alien Property Custodian and presumably are through a wrongful act." The Senator me say to the Senator that I ask him being or will be sold or licensed to American from Maryland admits the act is wrong, not to address his remarks to me, be­ firms just as during the last war. and I, too, say it is wrong. · cause I will vote very definitely against 4. The Supreme Court has never said that Mr. TYDINGS. And it is admitted to permitting the Government to do what a trade-mark is not property; it has repeatedl:Y be wrong bythe body in which the Sen­ the Senator from Maryland has just said that it is. In order, however, to make it ator from West Virginia sits. stated. entirely clear that it does not recognize a Mr. TYDINGS. Of course, I realize property right in a mark per se, the decisions Mr. REVERQOMB. But the Senator always include a statement to the effect that from West Virginia is not going to vote that. I do not address my remarks to the Senator personally. • the property right is "appurtenant to an es­ for that wrong. tablished business or trade." The Senator from Maryland goes one Mr. REVERCOMB. I wish to say that, The very cases cited by the committee in step further. He says, "Since this as the Senator from Maryland well its report make it clear that the right to the wrong is going to be committed-- knows, there are numerous persons who exclusive use of a given trade-mark in a cer­ Mr. TYDINGS. By the Senate of the have used the red cross symbol. tain business is a property right. Mr. Jus­ United States-- Mr. TYDINGS. Not many, let me say tice Pitney made _the matter very clear in to the Senator. Hanover Milling Co. v. Metcalf (240 U. S. 403, Mr. REVERCOMB. Yes. The Sena­ Mr. REVERCOMB. There are anum­ 413, 414) wherein he said: tor's amendment says, "If this wrong is ber of persons who have used the red . "Common-law trade-marks, and the right to be committed by the Senate of the cross symbol as a trade-mark and who to their exclusive use, are, of course, to be United States, which represents the peo­ have established their goods on the mar­ classed among property rights (Trade-Mark ple of the United States, I am going to cases, 100 U. S . 82, 92, 93); • • • ~n de­ reach out to my principals, the people, ket. I do not think the right to use that nying the right of property in a trade-mark and take the money of the people to trade-mark should be taken from them it was intended only to deny such property reimburse the man who has been done unless the person who receives the bene­ right except as appurtenant to an established fit of the taking pays for it, and not the business or trade in connection with which wrong, not for a public good but for a people of this country. the mark is used." . private gift which I gave· a very worthy Mr. O'MAHONEY. Mr. President­ What Justice Pitney meant was that none fellow." Mr. TYDINGS. I ask the Senator to can claim to own, for instance, the sign of a I think that second proposition of pay­ wait for a moment, inasmuch as I am red cross broadly and without regard to any ments with public money is wrong as well about to conclude. The Senator from established business or any particular ar­ as the original wrong of taking the prop­ ticles of merchandise. The property right is Wyoming has been very patient. acquired by selecting a particular mark a:I?-d erty. I desire to have my position on Mr. President, I simply wish to ask that point made clear. I wish we could using it to identify the products of a certam my colleagues to consider this matter to­ merchant. The property right thus acquired go back to the beginning of the con­ day, if they will do me that honpr, mo}'e is the right to the exclusive use of such mark sideration of this matter, and could take or less as if they were a jury with one for such purpose. Naturally, such right can­ up the original bill, and either amend it American before it. That is all I am not ·exist apart from the business and its to the extent suggested by the Senator here for. The only case I know of in this value can only be measured by reference to from Georgia or not pass it. That is the connection is that of Mr. Silver, an the business. However, the property right proposition which should be brought be- American who comes before the Con­ is there-it has a value-such value can be fore the Senate. , gress and proves that he owns a valuable measured; and when the exclusive right to Mr. TYDINGS. If we can reconsider use the mark in such business is taken away, property, and proves he has owned it the value is extinguished just the same as if the bill, of course I have no objection to ever since 1871, long before the Red the owner's factory or power plant were taken having the people who are being hurt ex­ Cross came along. I ask my colleagues away from him. cluded, as they should have been in the to consider that they, as jurors, have de­ In the second case cited by the committee first place. But the fact remains that cided to take that property from him­ (United Drug Co. v. Rectanus, 248 U. S. 90, Charles B. Silver is about to have a valu­ for that is the present aspect of this 97), J,ustice Pitney reaffirmed his previous able property right taken from him with­ case-and I ask my colleagues, as men of holding, saying: "It (a trade-mark) is not cut compensation and without the right fair intent to our own citizens, whether the subject of property except in connection to have a day in court in order to show he is not entitled to a day in court on · with an existing business." what his loss has been. He is an old man. . It follows that a trade-mark is property the matter of the redress of the damages if it is connected with an existing business. He is almost 80 years old. He has worked we are about to inflict upon him? hard all his life. He began as a man in What this and other like decisions seek to ExHmiT A convey is that a company which used the relatively poor circwnstances, and red cross as a trade-mark for oysters in the RIGHT TO EXCLUSIVE USE OF TRADE-MARK Is worked his way up. He has accumulated years prior to 1900 and then went out of busi­ PROPERTY UNDER FlFTa AMENDMENT a competence. He is an honest and God­ ness cannot today claim a property right in fearing man of splendid reputation. His 1. The word "trade-mark" is of double or sell that trade-mark because it is no longer years are not few. Here he stands with meaning, i. e., it may be used to designate- the connected "with an existing business." The all the integrity at his command. His mark itself as, for instance, a red cross, or it property right is automatically extinguished may be used (and more properly) to desig­ when the business is abandoned. This is business has customers all over the coun­ nate the exclusive right to use a given mark just what has happened to the great ma­ try, and it goes back to 1871. He is being to. distinguish the user's goods from like jority of red cross trade-mark rights. Of tried today and his property is being goods of other origin. While there can be no the hundreds who claimed such right in taken from him, not by the American property right in a representation of a red 1905, there are now less than a score .who Red Cros~. not by any court in this land, cross, the right to exclusive use of such mark still have an "existing business" in which the but by the Senate of the United States. to distinguish certain goods Is a very valu­ mark has been continuously used. We are sitting as .a jury of condemnation. able property right. 5. It must be recognized that the Federal We are admitting that his property has 2. Congress, in enacting the trade-mark Government has not granted any trade-mark law has limited registration to "the owner of . rights to anyone; such rights have been ac­ value, because our experts are the Su­ a trade-mark" ( 15 U. S. C. 81) . quired and are today acquired under the preme Court of the United States who, 3. Executive Order 9095, of March 11, 1942 common law of the several States as mOdified over and over and over again, .say that (see p. 659 of the second supplement to the by State trade-mark statutes. It is not. a trade-mark in use in connection with 1940 U. S. Code), ordered: therefore, as Senator CoNNALLY m.!l1ntains, a 1944 CONGRESSIONAL RECORD-SENATE ,3641 case of the Federal Government taking back Mar. 16; Dec. 21, 1863. (Romilly, M. R., 32 .It is hence settled law that the right to something that it gave; it is a question of L. J., ch. 548; Lord Westbury, C., 33 L. J., ch. tise a trade-mark is :aot a mere p&rsonal' the Federal Government taking away prop~ 204.)) privilege, but that, within certain limits, it erty rights vested in certain firms under the "A trade-mark consists in the exc1us1ve is property, capable of being bought and common law of the several States. The pres­ right to the use of some name or symbol as sold, and for the invasion of which an ac­ ent red cross trade-mark, law (the act of applied to a particular manufacture or vend­ tion for damages will lie, and the exclusive January 5, 1905, as amended,) gives com­ ible commodity, and such exclusive right is use of which it will be protected, when nec­ mercial users nothing that they did not al­ property." (Leather Cloth Co., Lt;d. v, A.mer­ essary, by injunction." (Citing numerous ready possess under the common law prior ican Leather Cloth Co., July 8; Dec. 21, 1863; United States decisions.) to such enactment. That act did, however, ·May 12, !'865. Wood, V. C., 32 L. J., ch. 721; N. B.-It may be noted that our present recognize that such property rights were in Lord Westbury, C., 33 L. J., ch. 109; House of trade-mark law provides for an action for existence and could not be disturbed by Fed~ Lords, 35 L. J., cb. 53.)) damages for infringement of a trade-mark era! enactment. "It is correct to say that there is no exclu­ right. 6. Mr. Joseph Hartfield has appeared as sive ownership of the symbols which consti- . FIFTH-AMENDMENT CASES one of the legal representatives of the Amer­ tute a trade-mark, apart from the use or The franchise of a private corporation is ican National Red Cross at tl}.e hearings on application of them, but the word 'trade­ property which cannot be , taken for public the present bill and on previous bills. In mark' is the designation of these marks or use without compensation. (Wilmington & his testimony on a similar bill in the Sixty­ symbols as and when applied to a vendible W. R. Co. v. Reid, -13 wan. 264 ( 1872).) ·fifth Congress (H. R. 14330), and which commodity, and the exclusive right to make Letters patent for a new .invention or testimony is reported at page 383 of the such use or application is rightly called discovery in the arts confer upon the paten­ House hearings on the present proposal, Mr. property." (Barnett v. Leuchars, Dec. 4, 1865. tee an exclusive property in the patented Hartfield said: (Stuart, V. C., 13 L. T., N. S. 495; 14 W. R. invention which cannot be appropriated or "If a man used this before 1882 and ad­ 166.)) used by the Government itself, without just vertised it and his emblem is of value, it "According to the principle which governs compensation, any more than it can appro­ does take away from him that value and does these cases, an owner has an exclusive right priate or use without compensation land deprive him of a thing of value, and to that to a trade-mark or label, and that right is to which has been patented to a private pur­ extent it might be said to be harsh, just as be regarded as his property." (Ainsworth v. chaser. (James v. Campbell, 104 · U. S. 358 in the case of Congress condemning a piece Walmsley. (Wood, V. C., 35 L. J., cb. 352.)) (1882) .) of property and taking it away from a man "And inasmuch as the court protects the Where the Government appropriates a frequent}y works injustice." owner of the mark, he is entitled to author­ portion of an entire tract of private land for Later in the same hearing (p. 387 of the ize another, when be bands over his business public purposes it is also liable, .in ascertain­ House report) Congressman CRosSER asked to him, to place that mark on his goods. ing the just compensation, for the damage Mr. Hartfield: That is a right which, being protected by this to the remainder resulting from such taking, "You will, of course, concede that there court, may be disposed of for value, may be embracing injury due to the use to which might be very valuable property in some bought and sold, and is, therefore, in that the part appropriated is to be devoted. trade-mark?" sense of the word, property." (Congress & (Archer v. U. S., 251 U. S. 548.) Empire Spring Co. v. High Rock Congress Mr. HARTFIELD. No doubt. CONCLUSION . In other words, the leading legal light of Spring Co. (N.Y. Sup. Ct., 57 Barb. 526; N.Y. The following points should be borne in the American National Red Cross has never Ct. of App., 45 N. Y. (6 Hand) 291.)) "A property in trade~mark may be ob~ mind: questioned the fact that a trade-mark right A. Trade-mark rights are acquired under is a property right; his contention has been tained by transfer from him who has made the primary acquisition, though it is essen­ the common law of the States and not from that such rights may be confiscated by the the Federal Government. They are not Government without compensation. In his tial that the transferee should be possessed of the right either to manufacture or sell copyrights and registration is immaterial. answer to the preceding question, he made B. A trade-mark is one thing; a trade-mark his position more explicit as follows: the merchandise to which the trade~mark bas been attached. And it may also pass by right is another. One cannot own or have a "I would say such a statute would be Ull­ property right in a trade-mark per se; but constitutional in that it ·would deprive them operation of law to anyone who at the same time takes that ·right." one can own and have a property right in the of it without due process of law, unless that exclusive use of a given mark to identify society was an integral part of the Govern­ Browne's Law of Trade-marks (1898) quotes the following: certain goods of his manufacture or selec­ ment." tion. That such property right is acquired In other words, the position of the Ameri­ "Rhodes, J., in delivering the opinion of the by adoption and use under the common law can National Red Cross is that because such Supreme Court of California in Derringer v. does not detract from its value. society is an integral part of the Government Plate, 29 Cal. 292, in 1865, said: 'The right C. The courts have never said that a trade­ (as to which there is considerable doubt) , of property does not in any manner depend mark right is not a property right; what they property rights may be confiscated in behalf for its inceptive existence or support upon have said is that the property right is in the of such society without compensation. That statutory law, although its enjoyment may combination of a mark and a business, i. e., such position is untenable will hardly be de­ be better secured and guarded, and infringe­ the adoption and use of a given mark in nied by any Senator. ments upon the rights of the proprietor may connection with a given business. There is be more effectually prevented or tedressed, by CITATIONS no property right in the word "Kodak," but the aid of the statute than at common law. there is a property right in the exclusive use "A right to adopt and use a symbol or a Its exercise may be limited or controlled of that name to identify cameras of a cer- device is a property right for the violation of by statute, as in case of other property; but, tain manufacture. · which damages may be recoved in an action like the ~itle to the goodwill of a trade, which D. The proposed law is probably the first at law and the continued violation of it will it in some respects resembles, the right of bill that has even passed a House of Congress be enjoined by a court of equity with com- , property in a trade-mark accrues without wherein it is proposed to vest in a_ny person or pensation for past infringement.~· Encyclo­ the aid of the statute.' " corporation "the sole and exclusive right to pedia of United States Supreme Court Re­ Paul on Trade-marks (1903) says (par. 17): use, within the territory of the United ports, 618-citing Manhattan Medicine Co. v. "Upon whatever idea the courts proceeded, 1 States" a given combination of words. Ob­ Wood (108 U. S. 218, 224, 27 L. Ed. 706); Me~ as soon as their decisions established in a viously, such grant is u~constitutional since Lean v. Fleming (96 U. S. 245, 255, 24 L. Ed. particular individual a right, exclusive as · Congress cannot take away from the citi­ 828). (From Sebastian's Digest of Cases of against the world, to use a particular label · zenry the right to use the words "red cross" Trade Marks, etc., London, 1879. Stokes v. or mark whereby tradf:l was attracted to him, verbally or in writing. In this very bill the Landgraf!, October 1853; September 1854 that right at once became a thing of value, sponsors have gone farther than any deci­ (N. Y. Sup. Ct., 17 Barb. 608; R. Cox 137) .)' and hence property, in a sense more strict : sion of record in recognizing a trade-mark "The principle is well settled that a man­ than that in which many other incorporeal to be a property right. ufacturer may., by priority of appropriation rights, such as the elective franchise or the E. "Exclusive use" is the heart of the prop­ of names, letters, marks, or symbols of any right of presentation to a vacant benefice, , erty right; when the Congress takes away kind to distinguish his manufactures, acquire have been regarded as property. 'Moreover, , this exclusive use from the commercial users a property right therein as a trade mark. the· courts of chancery were appealed to·, 1 and gives it to the American National Red • * *" (Per Strong, J.). (Bradbury v. . successfully, to enjoin the infringement of Cross, it is seizing property rights for a public Dickens, March 26, 1859 (Romily, M. R., 27 · trade-marks in cases where no fraud was 1 use. Beav. 53; 28 L. J., cb-. 667; 33 L. T. 54).)· intended, and where the relief could hence • · · F. "Goodwill" and "trade-mark" are simply "The property in a ·literary periodical like be granted only on the idea of property in names that are loosely used to designate in­ this is confined purely to the mere title, and · the user of the mark. Accordingly, it has tangible rights having a property value com~ . the title of this work is 'Household Words,' become a settled doctrine of the English mensur;:tte wit.h the preference of the trade and that forms part of 'the partnership assets and American courts that trade-marks are and public for the products which they iden­ and must be sold for the benefit of the part­ protected, not exclusively on the ground of tify by a given mark. When the mark dis­ ners if it be of any value." (Hall v. Barrows, fraud, but also on the gr~ul':d of property. , appears the trade and public can· no longer 3642 CONGRESSIONAL RECORD-SENATE APRIL 24 identify the product and the goodwill van­ Registration No. 4021 was granted to its tory. This opm10n was rendered tn The ishes.' predecessor September 26, 1876. The regis­ Trade-Mark Cases. Its citation iS: United G. In Cuba, Argentina, and other coun­ tration No. 5592 granted January 29, 1878, to States v. Emil Steffens, United States v. tries, trade-mark rights are granted by the a predecessor of United States Rubber Co. Adolph Wi{temann, United States v. W. W. government to the first applicant. In the also covers a mark still in use. Johnson (100 U.S. 98). United States they are acquired by priority G. That the Supreme Court has held that In this opinion the Supreme Court held of adoption and use under the common law. there is no ·property right in a trade-mark. invalid a Federal statute attempting to regu­ In either case a property right results. There On the contrary, the very decisions cited late the creation and incidences of trade­ is nothing to prevent the State of Maryland in the comm~ttee report recognize property marks. from enacting a law granting trade-marks rights in a trade-mark as long as such trade­ Speaking for a unanimous court Mr. Justice to the first applicant so long as such law mark is not divorced or separated from a Miller said, at page 92: recognizes rights already established under going business. Such property right has been "The right to adopt and use a symbol or a the common law. The eventual r~ght is the ·admitted by counsel for the American Na­ device to distinguish the goods or property same whether it is by State grant or by rec­ tional Red Cross (p. 383 of the House hear­ made or sold by the person whose mark it is, ognition of the common law. In each case ing). to the exclusion of the use of that symbol by a property right, results. WASHINGTON, D. C., January 28, 1944. all other persQnS, has been long recognized by H. An act preventing a man from using his Hon. MILLARD TYDINGS, the common law and the chancery courts of home would be just as effective a taking as Senate Office Building, England and of this country, and by the an outright condemnation. Whether the Washington, D. C. statutes of some of the States. It is a prop­ property right is "extinguished" by the Gov­ MY DEAR SENATOR TYDINGS: As against the erty right, for which damages may be recov­ ernment or taken for Government use ap­ theory that trade-marks are not property, I ered in an action at law, and the violation of pears to be immaterial; the owner's right is think it may be worth while to cite: which will be enjoined by a court of equity, .with compensation for past infringement. "taken" away from him and he must be (1) 26 U. S. C. 119 requiring "rentals or compensated. This property and the exclusive right to 1ts royalties for the use of or for the privilege use. were not created by the act of Congress, of using • • * patents, copyrights, secret EXHIBIT B and do not now depend upon that act for processes and formulas, good will, trade­ their enforcement. T)le whole system of The bill should be reconsidered for the fol­ marks, trade brands, franchises, and other trade-mark property and the civil remedies lowing re::1sons: like property" to be treated as income. for its protection existed long anterior to the 1. There was not a full attendance and the (2) 11 U. S. C. 110 vesting bankrupt's title act of Congress, and remain in full force since vote was very close on the compensation "to all • • • (2) interests in patents, its passage. · · amendment. patent rights, copyrights, and trade-marks, "These propositions are so well understood 2. Senator GEORGE's amendment is inoper­ and in applications therefor" in the trustee. as to need no citation of authorities or elabo­ ative unless also included in section 4. (3) 15 U. S. C. 81 and particularly the rate argument to prove them. 3. The emblem protected by the bill (a amendment tacked on the end thereof by "The property in trade-marks and the right red Greek cross on a white field) is not that the act of June 10, 1938, which provides for to their exclusive use resting on the lPWs of stipulated by the convention, viz, "the registration of a "collective mark" to "any the States in the same manner that other heraldic emblem of the red cross on a white natural or juristic person, including nations, property does, and depending, lilte the great ground formed by reversing the Federal colors States, municipalities, and the like, which body of the rights of person and of property, of Switzerland." exercises legitimate control over the use" for their security and protection on those 4. The bill was brought up without prior thereof. · laws, the power of Congress to legislate on notice even to memb::lrs of the committee. This amendment recognizes that a person the subject, to establish the conditions on 5. The bill gives the American National may own a mark which he himself does not which these rights shall depend, the period Red Cross "the sole and exclusive right to use but over the use of which he exercises a of their. duration, and tha lEgal remedies for use • • • the emblem of the Greak red . legitimate control. Hundreds of such marks their protection, if such power exist at all, cross on a white ground, and the words 'red have been registered in the Patent Office must be found in some clause of the Consti­ cross' and 'Geneva cross' without limitation since this amendment was adopted. For in­ tution of the United States, the instrument as to purpose or character of such use. No stance, Walt Disney licenses different manu­ which is the source of all the powers that such broad grant is warranted by the conven­ facturers to use the name and picture of Congress can lawfuliy exercise." tion or the Constitution. Senator O'MA­ Donald Duck as a trade-mark for a consid­ Citing the opinion above, Justice Holmes HONEY's assurances that the bill does not eration and on the basis of such use he (or stat<;d in United Drug co. v. Rectanus Co. (248 prohibit fraternal or secular use can hardly his corporation formed for that purpose) u. s. 90, 98) : be reconciled with the above-quoted language registers the mark in the Patent Office as "Property in trade-marks and the right to of section 1 of the bill. his property. To say, under these circum­ their exclusive use rest upon the laws of the 6. Various remarks made in support of the stances, that he has no property right in the several States, and depend upon them for bill during the discussion on the floor appear D::mald Duck trade-mark is absurd because, security and protection, the power of Con­ to be in error as follows: of course, it is a naked property right which gress to legislate on the subject being only A. That a trade-mark "is an act of grace returns to him a very substantial revenue. such· as arises from the authority to regu­ on the part of the Government of the United There is nothing to prevent him from licens­ late commerce with foreign nations and States; and if the Government wishes to take ing John Smith to use Donald Duck on doll among the several States and with the Indian that privilege back it can do so." carriages this year and then taking the right tribes" ( Trade-llfark cases, 100 U. S. 82, 93, On the contrary, trade-mark rights are away from John Smith and licensing Richard 25 L. ed. 550, 551). acquired under the common law of the sev­ Roe to use it on his doll carriages next year. Other pertinent quotations are- eral States and our first Federal Ii:tw was held 1. U. S. Ozone Co. v. U. S. Ozone Co. oj The mark means merchandise selected by America (62 F. (2d) 881, 885): unconstitutional becau~:e it followed the Walter Disney and the mark is his property erroneous aEsumption that trade-marks can "Trade-mark rights growing out of prior right which he may license as he sees fit. appropriation ;md use of a device or symbol be granted by the Federal Government. While the Federal statute does not create (Tmde-Mark Cases, 100 U. S. 82.) to distinguish or identify commodities made qr grant this right, it recognizes and pro­ · or sold ~y the owner of the trade-mark have B. That trade-mark owners "have had a vides registration therefor with the proce­ long been and continue to be recognized by monopoly which the Government dural advantages flowing from such regis­ the common law as property\ and as such has protected and guaranteed to them." tration. entitled to protection by the courts (Trade­ The Federal trade-mark law is not a sub­ Sincerely yours, Mark cases, 100 U. S. 82, 25 L. ed. 550; stantive law but merely provides procedural C. P. CARTER. Stephana Bros v. Stamatopoulos, C. C. A. advantages in case of infringement of a mark 238 F. 89, L. R. A. 1917C, 1157; Hanover Star used in interstate or foreign commerce. The EXHIBIT C Mimng Co. v. Metcalf, supra). While trade­ Federal Government has never granted or JANUARY 21, 1944. marlt rights may be fixed or limited by stat­ guaranteed any trade-mark right. ute, they are not dependent on statutory en­ C. That trade-marks are protected by the RE: A TRADE-MARK- AS PROPERTY WITHIN THE actment, but arise under the commbn law copyright laws and that "a copyright may be PROTECTION OF THE FIFTH AMENDMENT from prior, exclusive appropriation and use taken back whenever the Government wishes The fifth amendment provides: "nor shall (Trade-Mark cases, supra; Piggly Wiggly Cqr­ to take it back." private property be taken for public use, poration v. Saunders, D. c. 1 F. (2d) 572; A trade-mark cannot be registered or pro­ without just compensation." Phillips v. Hudnut, 49 App. D. C. 247, 263 F. tected under the copyright law. Even a copy­ A trade-mark is not only a recognized form 643; Stephana Bros. v. Stamatopoulos, right cannot be taken back because it is given of property but it is a property created ex­ supra). in return for publication of the work. (James clusively under and by virtue of the laws of "The Trade-Mark Act of 1905, as amended v. Campbell, 104 U. S. 358.) the States. These two principles were estab­ (15 U. S. C. A. 81-133), without changing D. That Chas. B. Silver & Son did not lished by the Supreme Court in the leading the substantive law, provides for the reg­ reg:stcr its trade-mark in 1876. trade-mark opinion in American judicial his- istration of marks used in interstate or for- 1944 CONGRESSIONAL . RECORD-SENATE 3643 eign commerce which, without statute, would the right grown out of use, not mere adop­ class with improvements that renew the pro­ be entitled to legal and equitable protec­ tion." prietor's hopes." tion. (Beckwith v. Commissioner of Pat­ 5. American Agricultural Chemical Co. v. 7. Historical Foundation of the Law Relat­ ents, 252 U. S. 538, 40 S. Ct. 414, 64 L. Ed. Moore, State Com. of Agriculture and Indus­ ing to Trade-Marks, By Frank L. Schecter; 705.) tries (17 F. (2d) 196): chapter VII, page 177 (published by Colum­ "Registration of a trade-mark simply con­ "Any trade-mark or name not unlawful In bia University Press 1925): stitutes prima facie evidence that the reg­ itself nor against public policy, which has be­ "(2) Using the term property in its modern Istrant Is entitled to the mark." come of a pecuniary value or a business ad­ legal sense, viz, as a right having a pecuniary 2. Little Tavern Shops, Inc., v. Davis (116 vantage becomes a property right, and, as value which will be protected by the legal F. (2d) 903, 905): such, is entitled to the protection afforded by agencies of society, rights in or pertaining to "The courts recognize a right of property the courts." trade-marks may be classified as property." In a trade name which has been adopted by "Undoubtedly, the plaintiff has a valuable 8. Speal~ing for the Supreme Court as re­ a person to denominate his business, and has property right in its trade name, and the cently as June 1, 1942, in Mishawaka Rubber been so used by him In association there­ court cannot permit the destruction of that & Woolen Co. v. S. S. Kresge Co. (316 U. S. with as to acquire a special significance as right, as no substantial or justifying reason 203, 205; 86 L.E. 1381, 1385), Mr. Justice the name thereof." can be found." Frankfurter stated: 3. May v. Goodyear Tire & Rubber Co. (10 6. Beech-Nut Packing Co. v. P. Lorillard Co. "The owner of a mark exploits this hu­ Fed. Sup. 249, 259) : (273 U. S. 629) : "Now, however, to deprive it (defendant) man propensity. by making every effort to Mr. Justice Holmes delivered the opinion impregnate the atmospllere of the market of the use of a mark which it has so widely and stated: popularized would not only cause it an enor­ with the drawing power of a congenial sym­ "A trade-mark is not only a symbol of an bol. Whatever the means employed, the aim mous loss in trade and in good will but would existing good will, although it commonly Is hopelessly confuse and deceive the buying is the same--to convey through the mark, thought of only as that. Primarily it is a in the minds of the potential customers, the public, which has come to know the mark distinguishable token devised or picked out as designating the product of this defendant." desirability of the commodity upon which it with the intent to appropriate it to a par­ appears. Once this is attained, the trade­ 4. Hanover Star Milling Co. v. Metcalf; ticular class of goods and with the hope that mark owner has something of value." Allen & Wheeler v. Hanover Star Milling Co. (240 u.s. 403, 413): it will come to symbolize goodwill. Apart It is obvious that whatever definition may "Common law trade-marks, and the right from nice and exceptional cases and within be employed in defining the property In to their exclusive use, are, of course, to be the limits of our jurisdiction a trade-mark trade-marks, some definitions being pre­ classified among property rights (Trade-Mark and a business may start together, and in a dicated upon a now irrelevant early history Cases ( 100 U. s. 82, 92; 25 L. Ed. 550, 551)); qualified sense the mark is property, protected of English Chancery proceedings, a trade­ but only in the sense that a man's rigb,.t to and alienable, although as with other prop­ mark owner does have "something of value" the continued enjoyment of his trade repu­ erty its outline is shown only by the law of within the meaning of the prohibition of tation and the good will that flows from it, torts, of which the right Is a prophetic sum­ the fifth amendment. free from unwarranted interference by mary. Therefore, the fact that the goodwill As to what prices are paid for this prop­ others, is a property right, for the protection once associated with it has \ranished does not erty, this "something of value," see attached of which a trade-mark is an instrumental­ end at once the preferential right of the pro­ schedule entitled "Certain Trade-Marks Ap­ Ity. As was said in the same case (p. 94), prietor to try it again upon goods rf the same praised."

Certain tmde~arks appraised

NamE oftrado-mark Value 'fransfer Source reference

Maxwell House Coffee ______$42,000,000, including a "very small percentage for From Maxwell Hou~e Coffee Co. to Genrral Foods Barron's Report, Nov. 17. 1930. brick, mortar, and inventory." in 1927. J elJ-0 ______------$35,000,000 ______From Jell-0 Co. to General Foods in 1927 ______Do. Dodge._------Bull DurhlillL ______''Sixteen million dollars a letter"------From Dodge Bros., Inc., to a banking syndicate .. Printer's Ink, Apr. 16, 1925. $10,000,000 to $20,000,000 (estimated by Mr. Duke)_ ------­ Printer's Ink. Nov. 11, 1920. Ivory, Victrola, Kodak, and "A million dollars a letter"-a common saying in ------Do. Uneeda. advertising circles. Camel (cigarette)_------$10,000,000 ______------A rejected offer in 1920. _ ------_------­ Do. Coca-Cola ______------__ .------$24,960,681 (versus $4,250,681 for tangible property)_ Annual balance sheet, 1920. (1941 and 1942, $37,- Printer's Ink, Mar. 3, 1921. Sun Maid Raisins ______126,972 for goodwill and trade-marks.) $5. 600,000 •. -----__. __ ------,------From Sun Maid Raisin Growers Association to a Printer's Ink, July 21, 1932. banking syndicate. Calumet (bak'ng powder)______~32,COO.COO______From Calumet l:'aking Powder Co. to General Printer's Ink . Eept. 27, 1£28. Foods in 1927. President of Calumet said,"It is safe to say that for ~32,COO,COI the plant could te duplicated many times." Castoris------$12,500,000 (including an est.mated value of tan· From The Castoria Corporation to llousehold Printer's Ink, Nov. 27, 1!l30. gible assets of not over $2,000,000). Products in 1929. ' Sunkist. __ ------$1,COO,OOO to UO,OOO,OGC. (estimated).------______------______------Printer's Ink, Nov. 11, U~O. Paramount__------$15,000,000 ______------Mr. Zuckor stated this to be the value._------Printer's Ink, April193L LysoL ______$7,600,000 ______Lehn & Fink value on books ______Printer's Ink, Apr. 26. 1928 V-8 CocktaiL ______$3,000,000 (of which in excess of $2,000,000 repre From Loudon Packing Co. to Standard Brands... sen ted trade-mark alone) . Woolworth's. ------$50,000,000 (evaluation of good will under recapital· ------______------Printer's Ink, Nov. 11, 1920. ization) . Sbinola, Bixby, and 2-in-L ______$8,300,000 including $4,300,000 for other property; From F. F. Salley Corporation to Mr. George K. Printer's Ink, Oct. 10, 1929. being thus $4,000,000 for trade-marks alone. Morrow, president, of the 3 companies. Naturals (Cigarette) ------$2,000,000 .• ______; ______----- From Schinflsi Bros. to Tobacco Products Corpo Printer's Ink, Nov.ll, 1920. ration in 1915. Pebeco, Hinds·------~------$6,214,000 (goodwillincl~ded in this amount) ______From A. F. Hinds Co. and Pebeco, Inc., toLelm Printer's Ink, Aug. 6, 1g25. & Fink. Melachrino, Naturals, Rameses, American Tobacco Co. in 1925 agreed to pay ------.------and Herbert Tareyton. $2,250,000 a year for 99years for use of listed trade­ marks.

In the April 16, 1925, Issue of Printer's Ink, Christian countries, and since 1189 has been · 1866: Bellows committee, which had an Charles R. Flint is quoted as saying: the national emblem of England.1 ephemeral existence and dissolvec in 1872 "Who cares about the mere factories in August 22, 1864: Geneva Convention, which without taking action.3 which Ivory Soap, or Baker's Chocolate, or adopted a red cross on a white ground as its 1869: Miss Clara Barton, founder of Amer­ Royal Baking Powder are made if you can buy symbol.2 United States not represented. ican Red Cross Society, first hears of Geneva the right to trade under these names? The Convention.4 5 market is glutted with manufacturing plants [In the source references, .. H. H." refers to 1872-1905: Numerous firms --of which not offered for sale at prices far below their ap­ hearings before House Committee on Foreign more than a dozen are still in existence and praised value; but there are few, if any, traqe· Affairs on H. R. 6911, Government Printing using the mark-adopted as a trade-mark the marks of proved value being offered for sale." Office. "S. H." refers to hearings before Sen­ ate Committee on the Judiciary on S. 24.41 and 3 See letter of Johnson & Johnson of Sep­ ExHmiT D H. R. 7420, Government Printing Office.] tember 1, 1943, to members of Senate Com­ CHRONOLOGY 1 H. H., p. 154 et seq.; see also Johnson & mittee on Judiciary. Eleventh century: Beginning at least as Johnson's Historical Use of the Symbol and • Johnson & Johnson letter of September 1, early as the eleventh century, the red cross Words "Red Cross." 1943. became a prominent and familiar symbol in 2 H. H., pp. 271-272. 5 H. H., p. 374. 3644 CONGRESSIONAL RECORD-SENATE APRIL 24 h istoric 6 symbol of the red cross or the words· 1926: Act of May 24, 1926, 23 forbidding any The Chief Clerk called the roll, and "Red Cross" or both. And at least three pres­ bank or person, etc., engaged in banking, etc., the following Senators answered to their ent uses--or their predeceswrs-started use to use the word "Federai," the words "United names: prior to 1881. (Canepa Co. of Chicago, in States," or the word "Reserve," etc., as a por­ 1372, adopted the symbol on macaroni 1 and Aiken Downey Overton tion of its name or title, but with the usual Andrews Eastland Radcliffe has been using this trade-ma1k on its product "grandfather" clause, preserving the rights Austin Ellender Reed continuously ever since-70 years. Canepa of firms, etc., "actually engaged in business Bailey Ferguson Revercomb came from Genoa, Italy, and adopted the J"ed under such name or title prior to May 24, Ball George Robertson cross symbol because it was the ensign of the 1926." Bankhead Gerry Russell province of Genoa and the ensign of St. 1929: The Geneva Treaty of July 27, 1929."" Barkley Gillette Shipstead George, the patron saint of the province of 25 Bilbo Green Smith Article 28 is in language almost identical Brewster Guffey Stewart Genoa.s Seabury & Johnson, predecessor of with that of article 27 of the 1906 convention Bridges Hawkes Taft Johnson & Johnson, started using the historic (supra), and applies not only to the red cross · Broolcs Holman Thomas, Idaho symbol in 1879.9 Charles B. Silver & Son symbol and name, but also to the arms of Buck Jackson Thomas, Okla. 0 claim continued use since 1876.' ) the Swiss Confederation, constituting a Burton Johnson, Colo. Truman 1881 : An American committee, formed by white Greek cross on a red background. (At Bushfield La Follette Tunnell Miss Barton in 1877, incorporated under the the convention in Geneva Mr. Eliot Wads­ Butler McClellan Tydings Byrd McFarland Vandenberg ·name, "The Amertcan Assoc.iation of the R.ed worth, who headed the United States dele­ Caraway McKellar Wagner Cross." 11 gation, stated to the assembled delegates: Chandler Maloney Weeks 1900: Act of June 6, 1900,12 first Federal "We can say, in summary, that in the United Chsvez May bank Wheeler statute incorporating the American National States the emblem of the red cross is very Clark, Idaho Mead Wherry Red Cross. The act made no reference to effectively protected by law and by the au­ Clark, Mo. Murdock White thority of the local chapter.") 2o Connally Nye Wiley commercial use of the trade-mark. Cordon O'Daniel Willis 1903: Emil Zofnass started in Boston his 1936: Pursuant to communications to the Danaher O'Mahoney Wilson business of making mattresses, and adopted State Department by the Swiss Legation the red cross for his trade-mark. (In 1903 the regarding legislation as to commercial use The PRESIDING .OFFICER Urposes of a declaration of a trade-mark. The American National Red Cross is of the nations of the world at Geneva So, Mr. President, I assert briefly t-hat n.ot a private institution. It is a public that this symbol should be used by all there is no question of a property right institutron created by the Congress of nations for these specific purposes and per se involved In this matter. This bHl the United .States to carry out a public the signatories to those conventions un­ would undertake to implement a solemn duty in the field oi national and inter­ dertook to create in their respective treaty of the United States, ratified in a national needs. It is not a society for countries organizations of this kind to constitutional manner by this body. profit. It makes nD profit. It is a society use this symbol. The head of this or­ When that treaty was ratified the Gov­ sole1y for the alleviation of the sufferings ganization, the Amarican Association for errunent of the United States assumed of humanity. Mr. President, there is no the Relief of Misery on the Battlefield, an obligation to pass the bill wbich is soldier or sailor of the United States to­ wrote a letter to the organization set up now before the Senate. So we are act­ day fighting on any front who does not in Geneva, saying "we are doing ou.r best to comply with the great work that y.ou ing under the superior power of. a treaty have the satisfaction of knbwing, and 10 obligation of the United States. whose parents do not have the satisfac­ are carrying on, ' or words to that effect. This is not a taking of private prop"" tion· of knowing; that the American Na­ Mr. President. that early treaty at erty for private use, as the Senator from tional Red Cross is there beside him to Geneva was ratified by the United St-ates West Virginia seems to have conceived. help him, and the insigne of that service in 1882. A new treaty Wa.s made in It is not a taking. of private property is the red cross. 1929 which amplified and strengthened for private use, first, because it is not a Therefore, Mr. President, when Sena­ the former one, and agaii.n the Senate of the United States ratified it. So we have taking of pr.operty. It is not a taking tors rise on this floor and in effect say, ''YDu shall not give the exClusive right this long history t:>f use from centuries for use, whatever the trade-mark may down and then f01" the specific purpose be, because it is a taking for the Ameri­ to the use of this symbol to this great organization, becaw;e, forsooth, it was from 1864 to this hour~ and it has gradu­ can Red Cross. ally been spreading and spreading. Now, what is the American National used at some time or other byeonfessedly P..ed Cross1 To say that it is a private private and commercial institutions for Mr. President, 62 of the nations of the institution, and that what Congress does private and commercial profit, I think world have adhered tD this .convention, to protect it is to conserve a private .ill­ they are balancing a very small, narrow. and we are asked now to say that it is terest, is a total misconception of the and weak need against the great need of .an invasion nf private rights. American National Red Cross. It was the people of AmericaJ the people of the Mr. President, I Ehould say that the organized to carry out the public obliga­ world, and those who -suffer from pesti­ -American Red Cross Society actually in tion of the Government of the United lence, 'flood, disease, and, above, all from its servi~ upon the battlefield and else­ States under the Treaty of Geneva. It war. where does more to support private is not a private institution. The passage What is this society? In-1916 it had rights by its war against human suffer­ of this bill would not in any way create about Su,OOO members. Today Mr. Pr.es-. ing than ·an other private institutions a precedent such a·s the Senator from ident, it has 15,000,000 members, and, in and !individuals combined. West Virginia fears, for the taking of addition to that, there are 15,000,000 Mr. McKELLAR. Mr. President, will public funds to enrich some private iil­ members of the Junior Red Cross serving the Senator yield? stitution. these humanitarian purposes fr-om end Mr. O'MAHONEY. I yield to the Sen­ I should like to read into the RECORD to end of the country. Thirty million ator from Tennessee. a few brief paragraphs from the charter Ameriean citizens are using this symbol Mr. McKELLAR. 'I am not very fa­ of the American National Red Crass. as an indication of the great work in miliar with this subject, but I endorse This charter was granted by the Con­ which they are engag-ed under a treaty what the .Senator says concerning the gress of the United States to carry out of the United States. Furthermore, Mr. .Red Cross and its value to the country the Geneva Treaty. I read: President, the Red Cross has .3,000.000 :and tothewol'ld. Weouf;;ht to d ... every­ The purposes of the corporation are ~nd workers. Are we to say that in striking thing we can t~ promote itf. best inter­ shall be- . the balanee between those millions who ests and to aid it in the great work it First. To furnish voluntary aid to the sick are serving the cause of humanity and is doing. But I was wondering if in and wounded of armies in ti~e of war, in. a few commercial user.s w.e shall strike this particular case an z.mendment could accordance with the spirit an:l conditions down the treaty obligation of the United not be properly adopted. As I under­ of the Conference of Geneva of October 1863, in and also of tqe Treaty of the Red Cross, States order that some commercial stand, many years ago some others were or the Treaty of Geneva, of August 22, 1864, purpose may be served. using the name "red cross." There were to which the United States of America gave Oh, Mr. President, the case · is even only a few. its adhesion on March 1, 1882. more clear than that. The red cross ha·s Mr. TYDINGS. There were six. Second. And for said purpose to perform been a symbol of humanitarian projects · Mr. McKELLAR. The Senator from all the duties devolved upon a national for centuries. It has always been used Maryland interposes to say there were 3646 CONGRESSIONAL RECOR·D-SENATE APRIL 24 about six. Why could there not be in­ The Senator from w·yoming says those Mr. TYDINGS. C. B. Silver & Co. serted in the bill a provision that anyone concerned already have the right to go was one of the three concerns in the who used the name prior to the time into court. If they already have the United States which used this trade­ when we gave all these powers to the right, I do not see how putting such a mark prior to 1882. In fact, their first Red Cross, the time to which the Senator provision in the bill would make very use of it was in 1871, and it was a reg­ has just referred, could be allowed to go much difference. istered trade-mark in 1876. into court and establish any loss if he I was not present on a previous occa­ Mr. STEWART. Mr. President­ had any, not against the Red Cross but sion when the matter was voted on, and The PRESIDING OFFICER. Does the against the Government of the United I did Lot recall the amendment having Senator from Wyoming yield to the ·sen­ States, for this is our action. It seems · been offered, but, merely as a listener, ator from Tennessee? to me that, if we are going to confer what is proposed has seemed to me to be Mr. O'MAHONEY. I yield. greater powers or sole powers on the Red the fair thing to do. We do not want to Mr. STEWART. I have not heard all Cross, perhaps we have some obligation take the rights of any citizen away from the Senator's argument, but I have lis­ to afford relief to private citizens who him. We want to help the great Red tened to a part of it, and I have previ­ are injured, if they are injured. I do Cross organization in every way possible. ously discussed the matter with him. not know whether they are -injured or At the same time, it seems to me to be a I wish to ask the Senator a question. to what extent they may be injured; I little unfair to take away a citizen's Suppose one of these users, for example, do not know any of them; but I am just right to a trade-mark without compen­ the user of the red cross emblem re­ wondering if we could not give them a sating him. ferred to by the Senator from Maryland day in court to establish any right which Mr. O'MAHONEY. Mr: President, if [Mr. TYDINGS], shpwe<;l it would cost him they might have, and, if they could show the Senator from Tennessee had been · $100,000 to educate the people to a new an injury, then they would have recourse present, if he had followed this measure tra<;le-mark which he would be required against the Federal Government for the as closely as the members of the sub­ to adopt if he continued in business; amount. of such injury. It seems to me committee have followed it, he would does not the Senator think it would be that if the Senator -would permit the realize that only three users of the red fair that the Government compensate motion to reconsider to be agreed to, -cross trade-mark in the United States him for that cost? and let such an amendment as that or have established any use prior to 1905. Mr. O'MAHONEY. No, I do not,· for something similar to it go to conference, When the act was passed, in 1905,-Con­ the reason which the Senator from where it might be worked out, we could gress did insert a provision saving the Georgia clearly pointed out on the 19th give the fullest powers ·to the Red Cross use of the trade-mark by persons or or.. of January, when this matter was under to the exclusive use of the Red Cross ganizations which· had been lawfully debate for the first time, and which symbol, but at the same time we could: entitled t-o use it prior to that date. That perhaps he may ha.,e repeated today make it absolutely certain that we were concession by Congress has been abused, publicly. Trade-marks are universally not injuring private rights. That is as the evidence before the committee made the subject of depreciation in the merely a suggestion which I leave with clearly indicated. tax returns of their users, and the com­ the Senator. I shall not name the particular con­ pensation of any us .... r for the expense Mr. O'MAHONEY. I am very glad the cern involved, because that concern now entailed in advertising is made up by Senator has asked the question. In the is loyally conducting itself in accordance deductions under the tax law. first place, Mr. President, I am speaking with the terms of the bill before the Sen­ I think there is a more important for the Committee on the Judiciary of ate, and making all arrangements to answer, however; and this is a funda- the Senate, and I have no authority cease the use of the red-cross emblem . mental answer. I say that the amend­ from that committee to accept an and to use another symbol, but in the ment is asking for relief which already amendment of the kind suggested, be­ telephone directory of the city of New is available. Let me read to the Sen­ cause a similar amendment was dis­ York at the place where the office num­ ator from title 28 of the United States cussed in the committee and rejected. ber of the American Red Cross Society Code, annotated, section 250, which is My own feeling was that the proposal was recorded, almost the entire margin .of section 145 of the Judicial Code: was probably surplusage, but I did not two pages was used by the manufacturer The Court of Claims shall have jurisdic­ regard the amendment of sufficient im­ of a certain commodity under the desig­ tion to hear and determine the following portance to resist it very strongly when nation "The Red Cross So and So." The matters: the matter was before the Senate on the . ( 1) Claims against United States. First. purpose was clearly to capitalize upon All claims (except for pensions) founded 19th of January. The Senate of the. the great goodwill the American people upon the Constitution of the United States United. States, however, at that time have given to the American Red Cross. or any law of Congress, upon any r.egulation voted down such an amendment. So, · So, Mr. President, since the protec­ of an executive department, upon any con­ Mr. President, I feel that I am bound, so tion of trade-marks is, as all the courts tract, express or implied. far as I am personally concerned, by say, an outgrowth of the law of fair com­ Observe- these two considerations: First, that the petition and for the protection of good­ committee does not want the amend­ All claims (except for pensions) founded will, when the Congress of the United upon the Constitution of the United States ment, and, second, that the Senate by its States and the Government of the United or any law of Congress. action, shows it does not want it. States have ratified an international There is a more important reason, in· treaty twice saying that this symbol If this bill shall be enacted, it will be a my opinion; namely, that any individual, shall be the exclusive property of the law of Congress, and having been en­ institution, or corporation which deems American Red Cross Society, and the acted, it will be the basis for a claim in itself to be injured by reason of the pas­ people of the country have built up the the Court of Claims. sage of the bill, if it shall become a law, good will of that society from end to end Mr. TYDINGS. Will the Senator already has the right which it is sought of the country, I say we should not again yield? to fortify by this amendment. I feel, take the chance that there might be an Mr. O'MAHONEY. Will the Setiator therefore, that if we were now to write abuse of a concession. permit me first to read a little further? this amendment into the bill, the bill be­ Mr. TYDINGS. Will the Senator Mr. TYDINGS. Yes, but before the ing an amendment of the charter oi the Senator leaves the code section I wish to Red Cross, it would ·be urged ·before the from Wyoming yield? Mr. O'MAHONEY. I yield. comment briefly on it. Court of Claims, perh~s. in some way or Mr. O'MAHONEY. Very well. other, as an indication that the Senate Mr. TYDINGS. I rise only to inter­ Mr. TYDINGS. A moment ago the of the United States believed that there ject that the occurrence to which the Senator said it would be an error, even was a damage which should be compen­ Senator· alludes, about the advertising though we had the right, to put this pro­ sated for. in the telephone book, had nothing what­ vision into the law specifically. He says Mr. McKELLAR. Mr. President, I ever to do with the case of Mr. C. B. the right already exists, and that if the think that could be worked out in the Silver. amendment were inserted it would tend conference between the two Houses Mr. O'MAHONEY. The Senator is to show the Court of Claims that Con­ without much difficulty. quite correct. gress· had some idea that there was dam- 1944 CONGRESSIONAL 'RECORD-SENATE 3647 age and therefore the Court of Claims Senator from Maryland earlier in the to the Court of Claims. This is what the might not view the question judicially. debate referred to the sale of a trade­ court said in construing the two sections: Now that the amendment has been of­ mark known as the Maxwell House Cof­ Under the first part of section 151 of the fered, were the Congress to reject it, fee trade-mark. That coffee was origi­ code the Government does not consent to be likewise it would perhaps be adjudged nally manufactured in Nashville, Tenn., sued in a court, but expressly makes such by the Court of Claims that the amend­ by Cheek & Co., and it was sold, as I un­ claims subject to its final legislative action; derstood at the time, and as the Senator in the class of cases under the proviso of sec­ ment providing that those injured might tions 145 and 151 of the code the Govern­ have a day in court having been defeated, stated, for about $42,000,000. How long ment does expressly consent to be sued, divest the Congress never intended that the would it take to reestablish that coffee itself pro tanto of its sovereign rights of im­ Court of Claims should take into con­ in the minds of the people as a com­ munity from suit, and independent of legis­ sideration any damages an individual modity or product they wanted to pur­ lative action or appeal to Congress affords the might have sustained, because when the chase, under the name of John'SOn House citizen a lawfUl right to have his claims question was specifically stated to the Coffee? The parallel which I am under­ against the Government adjudicated in the taking to draw is a perfectly fair on·e. same manner and under the same laws apply­ very Congress which took the trade­ ing with equal force to both the citizen and mark to be a right, they refused to re­ The company could. not reestablish the his Government. assert that right of the individual. coffee in the minds of the people for Mr. . O'MAHONEY. Mr. President, I · $100,000. The largest user of the red The plain language of the code has do not give any credence whatsoever to cross emblem, as I understand, is the been interpreted and confirmed by the the statement just made by our distin­ firm of Johnson & Johnson. action of the Court of Claims-that is, guished and able friend the Senator from Mr. O'MAHONEY. Let me interrupt the right to go into the Court of Claims Maryland. We will not bar the Court the Senator from Tennessee to say that and establish any damages, if 'they exist. of Claims from judging the merits. in this debate ·we have already given That right is already protected by law; Mr. TYDINGS. I do not agree with the three users of the emblem consid­ and I here specifically declare that so far erably more than $100,000 worth of act-· as I am concerned, and I am sure I speak the Senator. vertising. also for the Judiciary Committee, there Mr. STEWART. Mr. President-­ Mr. TYDINGS. Oh, no. is not the slightest intention by any of The PRESIDING OFFICER. Does the Mr. STEWART. Probably we have; this debate to indicate that in declining Senator from Wyoming yield to the but what substitute name or emblem is to approve the amendment which the Senator from Tennessee? to be used in connection with the prod­ Senator from Maryland desires, we are Mr. O'MAHONEY.- I yield. uct? We have not advertised any new foreclosing the power or authority of the Mr. STEWART. I will say to the name in connection with the product. court under the existing law to pass upon Senator from Wyoming again, as I have Mr. O'MAHONEY. The bill to which the merits of a case. So, Mr. President, said previously, that I favor the passage the Senator from Tennessee has given I hope when the matter comes to a vote of the bill. I voted for its passage origi­ indication of adherence provides the the Senate will reassert the position it nally, even after the proposed amend­ time for transition. took on the 19th of January, and decline ment had been defeated; But I think the Mr. STEWART. The period of transi­ to reconsider the vote by which the bill amendment, the major portion of which tion, as I understand, is 9 years. was passed. I read into the RECORD earlier in the de­ Mr. O'MAHONEY. It is 6 years. Mr. McFARLAND. Mr. President, I bate, is an entirely proper one. I think Mr. STEWART. Suppose a concern can add nothing to the SP.lendid remarks there exists an equity, which we ought to does not have the money necessary to made by the able senior Senator from recognize on the part of the commercial convert? I am assuming such a case to Wyoming, who was chairman of the sub­ users 'Of the ·red-cross emblem. I think exist. committee which considered the pro­ the United States Government owes that Mr. O'MAHONEY. No, it does not ex­ posed legislation. But I should like at duty to the commercial users. The Gov­ ist, because there are only two cases in­ this time to read a few of the remarks ernment recognized that duty when the volved, and they are the case of John­ made by the late Senator Van Nuys, act of 1905 was passe<", in which it was son & Johnson, which, as I can demon­ whose memory we all cherish, and whose provided that no new company should strate, is abandoning the use of the red judgment in connection with the pro­ make use of the emblem. But the United cross on some of its material, and the posed legislation while a Member of this States at that time recognized the right tomato concern from Havre de Grace, body was valued by everyone. and privilege which the users of the em­ Md. When this bill was formerly under blem were at that time exercising. Mr. TYDINGS. Not a tomato con­ I see in this matter purely an equitable consideration, and-when the able senior cern, a food concern. Senator from Maryland [Mr. TYDINGS] proposition, without regard to whether Mr. O'MAHONEY. I beg the Sena­ or not technically a trademark is a prop­ at that time was urging his amendment, tor's pardon; a canning concern. the late Senator Van Nuys, of Indiana, erty 'right, without regard to whether Mr. STEWART. Mr. President, I am there may now be on the statute books in favor of the bill which the Senator rose and was recognized. The following as the Senator from Wyoming has said, from Wyoming advocates, and I am also discussion occurred : a law under which an aggrieved concern in favor of the amendment offered by the Mr. VAN NuYs. I u~derstood the Senator might go before tl:)e Court of Claims. Senator from Maryland. I think the from Maryland to say that the Silver concern Frankly I doubt the right of an aggrieved amendment is equitable, right, and just. had registered the trade-mark in 1876. concern to go before the Court of Claims Mr. TYDINGS. I said they had used the Mr. O'MAHONEY. Mr. President, I trade-mark since 1876, and it was registered in the circumstances that would exist wish to conclude by reading a few words as soon as the trade-mark laws permitted it after the passage of this measure. from the case of Pocono Pines Assembly to be registered thereafter, and long before, Mr. President, I believe it is the duty Hotels Co. against The United States, in either case, the Government of the United and responsibility of the Government to which is reported in 73 Court of Claims States took any official action with respect to protect those who throughout the years Reports, at page 447. I read from page the Red Cross Society. have built up their goodwill and their 491. In the decision the court calls at­ Mr. VAN NuYs .. Mr. President, that is just trade, and have contributed throughout as wrong as the facts can be. I read from tention to the fact that there are two sec­ 'a letter recently sent me by H. J. Hughes, that time their proportionate share of tions of the code, referring to the code general counsel of the American National Red the taxes to the Government for its up­ of the Court. of Claims, which might have Cross. - . , keep. I believe it is'bad business for the a bearing in the. particular -case. One is Mr. TYDINGS. Very well, show me where I United States Government to destroy section 145, which the court construed, am wrong and I shall be glad to admit it. men who are in business. Suppose the ,and the other is section 151. Sectiqn Mr. VAN NuYs. The trade-mark now being situation of a man being put completely 145·, the section I have already read ..pro­ used by the Silver company was registered out of business because of the loss of his vides specifically that the Court of as a trade-mark March 6, 1906. I read from trade-mark. Let us say he does not have the letter: Claims shall have jurisdiction of a claim . "The .rflgistration st~tement under oath de­ the $100,000 to which I referred ·a mo­ against the United States arising under clares-, ment ago in· assuming· a hypothetical a law of the United States. Section 151, And here is where the 1876 comes in- case, with which to reestablish himself however, is another statute which refers "1. The trade-mark has been continuously in business under a new trade-mark. The to the right of Congress to refer claims used in the business since 1876.'' 3648 CONGRESSIONAL RECORD-SENATE APRIL 24 A little later in the colloquy the fol­ sociation for the Relief of Misery on the tion. They did so because they said that lowing occurred: Battlefield." in the event this country was raided, we These associations were the forerunners could not expect enemy nations to re­ Mr. VAN NuYs. I continue to read from the of the American Red Cross Society as in­ letter: corporated. So the statement that the red spect Red Cross trains or Red Cross units "It is to be noted that the first claimed cross had not been used by -the Red Cross or headquarters, inasmuch as articles use starts in 1876, 12 years after the Treaty Society-- bearing the red cross sign were being of Gene v a~-" Mr. TYDINGS. I did not say that. produced for commercial usage and the Mr. TYDINGS. To Which the United States Mr. VAN NuYs. Or its predecessor-­ red cross is placed on top of many of was not a party. Mr. TYDINGS. I did not say that. Mr. VAN NuYs. Will the Senator please per­ their buildings. Mr. VAN NuYs. I beg the Senator's pardon. Mr. President, I say it is time to cor­ mit me to cont inue? Mr. TYDINGS. I said the Red Cross received Mr. TYDINGS. Yes, I will; but I want the no official sanction by the Government of rect the situation now before damage Senate to know the whole situation. _ the United States until 1905, and I stand on occurs. The Senator from Maryland can Mr. VAN NUYs. The Senator has had his that statement. introduce legislation to recompense the opportunity. I continue to read-- Mr. VAN NuYs. That is the date of its in­ . corporation he has in mind ·any time it Mr. TYDINGS. Mr. President, will corporation. is damaged. Certainly it is a strange the Senator now permit me to interrupt Mr. TYDINGS. That is correct. situation to say that the Congress of the Mr. VAN NuYs. But its predecessor, the United States must recognize a {iamage him? two associations which I just mentioned, Mr. McFARLAND. Mr. President, I for years anrl. years used the red cross as before it exists. should like to complete my remarks. an emblem, and the emblem would not have Mr. President, I hope the Senate will Mr. TYDINGS. I understand that, been worth 5 cents to Mr. Silver, of Havre not vote to reconsider this important •,ut the Senator is now making-and is de Grace, Md., if it had not been for the legislation. doing so inadvertently, I am sure-an in­ long history of charity and humanitarianism Mr. AUSTIN. Mr. President, I served correct statement. built up around this traditional symbol. on the committee which studied the Red Mr. McFARLAND. I am r~ading Those are the remarks, Mr. President, Cross bill, and I feel that I should state from the RECORD. made upon this subject by the late Sen­ for the RECORD why I am opposed to the Mr. TYDINGS. The Senator is read­ a,tor Van Nuys, chairman of the Judici­ Tydings amendment, which is now under ing from a colloquy between the late Sen­ ary Committee at the time when this consideration, or any other amendment ator Van Nuys and myself. legislation was under consideration, and which would create a property right or a Mr. McFARLAND. That is correct. a man whom all of us recognized as being right of action for private o·r commercial Mr. TYDINGS. In that colloquy the fair. From some of the remarks which use, as a trade-mark-in commerce, of the late Senator Van Nuys said the treaty of have been made here today, one would Red Cross contemplated by the Geneva Geneva was adopted-when? think the Red Cross was going to receive convention. Mr. McFARLAND. It was adopted in a great deal of benefit, that the organiza­ It is my opinion, Mr. President, that 1882. tion which was to receive the benefit of no private enterprise ever could or ever Mr. TYDINGS. No; it was adopted this legislation was some private corpor­ did acquire any property right in this in 1860; was it not? ation. That is not true. distinctive emblem adopted by interna­ Mr. O'MAHONEY. In 1862, the con­ What is a trade-mark? A trade-mark tional agreement. That agreement has vention was made. It was ratified by the is an emblem by which goods may be extended to 63 nations. The mark, in United States in 1882. recognized as those of the owner. The which these gentlemen claim to have Mr. TYDINGS. I thought the con­ emblem is not the goods themselves. some property right, has become of such veation was made in 1860. I said the Does a red cross trade-mark in any way public interest and represents such United States was not a party to the .signify the ownership of the goods which humane activity that it would be abso­ treaty when it was made, but the Sen­ we have been informed are marketed by lutely against the interest of humanity ator would never allow that statement to these companies? No. The benefit if it could be possible for any business go into the REcORD. Whatever was comes, as has been pointed out, from the enterprise to appropriate the mark ·and adopted in Switzerland, we were not a goodwill which has been developed over sell its goods on the misleading repre­ party to. long years of service by the Red Cross sentation that somehow or other it has Mr. McFARLAND. It must also be Society, which started before any of the sanction of the Red Cross or has the borne in mind that the company in these corporations or organizations came quality of humaneness of the'Red Cross, which the Senator from Maryland is in­ into existence or used their trade-marks. or that it serves in any w.ay to relieve the terested did not register its trade-mark The Red Cross has nothing to do with sufferings of wounded and sick soldiers until many years after the· treaty was the bandages manufactured and sold by on the battlefields, or that it serves other ratified. Johnson & Johnson. When bandages humane purposes, such as rescue in times Mr. TYDINGS. When was the trade­ with the trade-mark of Johnson & John­ of disaster, fire, flood, or earthquake. I mark law passed? How could the trade­ son are placed on the market, what do say that it is unbelievable that anyone mark be registered until the Government the purchasers think? They think the should recognize a right in a private en­ passed the trade-ntark law? Red Cross to which you and I contribute terprise, be it a corporation or an indi­ Mr. McFARLAND. A little later I will has something to do with the production vidual, to acquire any exclusive property have a few words to say about the trade­ of those bandages. That is why such in the mark of the American National mark law. corporations do not want to give up the Red Cross. Mr. TYDINGS. Do not say that they use of the red cross trade-mark. There What I have just said is based oil the should have registered their trade-mark is where the advantages accrue. One question of right and wrong. It is on the before the law permitting the registra­ would think the American National Red basis of morals. But beyond that, there tion of trade-marks was passed. I only Cross is being tried here. What is the is the law to consider. There are many want accuracy; that is all. American National Red Cross? It is the decisions, some of them decisions of the Mr. McFARLAND. The Senator will people of the United States who contrib­ Supreme Court of the United etates, have accuracy, so far as I am concerned. ute their dollars for the protection of the which have settled the principle that no Mr. President, I continue to read from boys across the seas. such mark as that, which belongs to the RECORD of January 19, 1944. It is In this proposed legislation provision society, can be appropriated by any in­ rather difficult to get an opportunity to has been made for ample time to allow dividual member of society as a distinc­ read, when the Senator from Maryland is those who have used such trade-marks tive badge of his own. talking. The late Senator Van Nuys to change them, so that their products In this case it happens that this is a read the following from a letter written may be known by a proper brand. Sub­ society which has the recognition of all by the general counsel of the American sequently the goods of such concerns will the civilized nations in the world. Con­ National Red Cross: not be recognized as having the endorse­ siderations of due process of law and recognition of the rights of property are "Twelve years after the Treaty of Geneva, ment of the. American National Red and from 10 to 12 years after the use of the Cross. not tested here, as they are in other red cross emblem by the United States Mr. President, representatives of the cases. · Sanitary Commission in Civil War days, and Red Cross came before the Committee on The application of the sections of our by the kindred society, the American As- the Judiciary and asked for this legisla- Constitution to rights and wrongs, con- 1944 CONGRESSIONAL RECORD-SENATE '3649 ·tracts and property; made with respect ers in order to win t:1e war, we are use in the application of it. But what­ to laws which are the result of conven­ awakening to the fact that there are ever else it may be, it is unselfish, it is tions between nations is wholly different laws which command us other than benevolent, and it is for the benefit of the from the application of the Constitution those which are expressed and enumer­ humari race-not physically alone, but to other laws, which govern the affairs ated in our Constitution. morally, of our own people within our own bound- What I am undertaking to say is that If any man in this country has a legal aries. · this treaty, agreed upon in 1864 by some title to any property right in that em- Indeea, Mr. President, the right, the of the nations of the world, and subse­ . blem, Mr. President, he does not need power, and the duty to enter into rela­ quently assented to by the United States, a statute of Congress for his protection. tions with our neighbor nations do not creeted an emblem of mercy not for gain, He can defend himself completely the grow out of the Constitution. To be not for commerce, not for competition, moment the Red Cross or the Govern­ sure, our forefathers vested ·in the Fed­ not to build up a goodwill to sell at so ment of the United States institutes a eral Government-tpat is, in the Union­ much percent gain, but an emblem that prosecution or seeks an injunction, or the power to conduct political relations would be recognized by the atmies of any other process to prevent his further among nations, ~nd removed it entirely both sides engaged in combat, an em­ use of the red cross emblem. from the several States which had there­ blem which would inspire the faith, Mr. TYDINGS. Mr. President, will tofore possessed and exercised that inter­ philanthropy, and benevolence of all th~ Senator yield? national power. But our forefathers, by merciful people of the world. Mr. AUSTIN. I yield. the Constitution, did not vest in the Fed­ Probably there is nowhere in our civi­ Mr. TYDINGS. if what the Senator eral Government a single ounce of power lization outside of our churches an em­ says is sound, why do we need the pro­ to conduct negotiations and treaties blem which carries more sacred faith to posed legislation to prevent the use of which are necessary to the existence, the the _ peopl~ than does that of the Red the red cross emblem in commercial ac­ prosperity, the vigor, and the health of Cross, which was established by a con­ tivities? If the Red Cross has priority .the Nation. Those powers existed just vention of 63 nations. -To think that in its use of the etnblem, why does it not as soon as an entity among the family any private enterprise can acquire a bring suit fOr infringement and stop the .of nations was created. The moment property right in that emblem is utterly use of it by anyone but itself? there became a nation known as the ridiculous. Mr. AUSTIN. I asked that very ques­ United States of America, it had all the I assert that on moral grounds and on tion of another lawyer. I believe it was the first question which I asked, namely, power which was neces~ary to protect ·legal grounds there is no property right itself in any manner, and to develop its in the emblem outside the American Na- "Why do you come to us? Why do you welfare as one of the . member nations . tiona! Red Cross. But if there were a not go into the courts? You have ample which enjoy international law. It did property right in that emblem outside redress in the courts." The answer is the American Na anal Red Cross why simply that the Red Cross will not en­ not acquire that power by grant of its gage voluntarily in litigation. citizens. should we be confronted with this amendment? If there were really any Mr. TYDINGS. Mr. President, will , One of the clearest statements, I be­ the Senator further yield to me? lieve, on the point is to be found in ·legal right to the use of the emblem this amendment would have no place here at Mr. AUSTIN. I yield. United States against Curtiss-Wright Mr.' TYDINGS. I point out to the Export Corporation and others, although all; for whatever legal right there is in a trade-mark rests upon the common law. Senator that the red cross emblem as a there are many other cases which an­ device may be used legally by#·a man nounce this principle. It is a funda­ It is an award of fairness and of equity by society to the man whose genius has manufacturing buttons, by another man mental principle having to do with the manufacturing shoes, and by another political powers of this country-that is, · created an artificiaJ thing of beauty or of other striking characteristics which man manufacturing beds. There can be -having to do with that thing which we will attract the people and assure them envisioned hundreds of cases of the red .call sovereignty or nationality. Of that when it is applied to a certain prod­ cross in commercial life being a proper course, both the words "sovereignty" and uct it represents that product and noth­ and legal trade-mark without any in­ ~·nationality" are greatly abused words ing else. In making such award, society fringement one upon the other because these days. This is Mr. Justice Suther­ is not making a grant to the individual. the lines would not compete. land speaking for the Court: Society is protecting itself against fraud, The red cross has never been used by It results that the investment of the Fed­ against competition with those who the Red Cross Society except in a hu­ eral Government with the powers of external would imitate the goods and palm off on manitarian way, as the Senator has so sovereignty did not depend upon the affirm­ 'eloquently pointed out, but that does not ative grants of the Constitution. The pow­ society an inferior article solely by steal­ ers to deCl!l-re and wage_ war, to conclude ing the trade-mark of the bona fide and give them the exclusive right to use it or peace, to make treaties- good article. to stop its use in any other legitimate Mr. President, I am persuaded 'by the field. And that is in particular what we are evidence which came before our com­ Mr. AUSTIN. Mr. President, -in re­ talking ·about here- mittee that the American National Red · sponse to the Senator's suggestion let to maintain diplomatic relations with other Cross and its predecessors in title, that me refer to the flag of -our country. sovereignties, if they had never been men­ is the societies having other names but The United States Government, its offi­ tioned in the Constitution, would have vest­ cers, its armies· and navies do not use ed in the Federal Government as necessary · doing the same sacred work, have used 1864. the United States flag for business pur- concomitants of nationality. • ~ • The the red-cross emblem :Since They _power to acquire territory by discovery and have used It on arm bands, on headgear, ' . poses, for gain, or in competitioh with occupation (Jones v. U. S., 137 U. S. 202, . on flags, on hospital buildings, and upon private individuals who are using it on 212), the power to expel undesirable aliens ·every convenient article which could in­ buttons and on other things which they (Fong Yue Ting v. U. S., 149 U. S. 698, 705 form the opposing forces on the field of -manufacture and sell for profit. Yet no et seq.), the power to make such interna­ battle that here is a humanitarian or­ man can acquire any legal right to the tional agreements as do not constitute trea­ ganization Which is helping both sides. mark of the flag of the United States, ties in the constitutional sense (Altman & A person who is found wounded, no mat­ and neither can anyone acquire a right Co. v. U. S., 224 U. S. 583, bOO, 601; Crandall, ·Treaties, Their Making and Enforcement, 2d ter what his affiliation may be, is taken to the flag of any State of the Union to ed., p. 102 and note 1) , none of which is care of by the Red Cross. The object of be used on buttons or anything else in expressly affirmed by the Constitution, never­ the emblem was to avoid shooting down commerce. Such emblems have a char­ theless exists inseparable from the concep­ nurses, doctors, and all those who con­ acter that belongs to society; they belong tion . of nationality. This the Court recog­ tribute so greatly to the saving of human to the public, and it is against . public nized, and in each of the cases cited found life and to the ending of the misery policy and against public welfare to per­ the warrant for its conclusions not in. the caused by war. mit· the appropriation by private enter­ provisions of the ·Constitution, but in the Of course, the extension of the activity prise of any of these emblems that have lr.w of nations. - of the Red Cross throughout the world tc do with a matter which is so near to Mr: President, while in the midst of has taken that emblem to many other . the patriotic impulses and the general war, when we have to exercise war pow- places, and has involved a greatly diverse welfare of the people. 3650 CONGRESSIONAL RECORD-SENATE APRIL 24 Mr. TYDINGS. Mr. President, will of the first Geneva convention. In trade­ the Congress, and obtaining its laws from the Senator yield? mark No. 30428, registered July 27, 1898, Congress, a charter of the Red Cross Mr. AUSTIN. I yield. Clara Barton, then president of the American taken under the general incorporation National Red Cross, certified that the emblem Mr. TYDINGS. If that contention be ·had been continuously used by it since law for the District of Columbia passed true, then why this legislation at all? August 22, 1864. by Congress is recognition. That is my Why not stop the use of the red cross? claim. The record shows that the pres­ Mr. AUSTIN. I have answered that So that if we are going to stand upon ent American Red Cross, first organized and I think the answer I gave was a the theory that this is a type of emblem by act of Congress in 1900, succeeded by complete one-namely, that the Red as to which there can be competition, the terms of its congressional charter to Cross will not engage in all the different that it is a kind of mark that can be ap­ all the rights of the Red Cross Society litigations that would have to extend all propriated by private individuals, I say which Clara Barton incorporated under over the United States to suppress the use that they are all in arrears. I think that the laws of the District of Columbia in of the red cross. It will not do it; but it is an answer, and not merely a response. 1881. comes to Congress, which is supposed to Mr. President, I think I have said all I Mr. TYDINGS. The Senator is cor­ represent the public policy of the United wish to say. I am trying to make clear rect in his dates. States, and says to Congress, "Will you that, in my opinion, the Congress first is Mr. AUSTIN. Let me add, further, if please carry out the promise of the bound to carry out the treaty; second, it does not interrupt the Senator, that it United States? To be sure you ratified that the Congress is not bound, and was a continuation of the earlier Red the Geneva Convention in 1882 but that ought not to be bound as a matter of pub­ Cross Society founded in 1866. is not sufficient. You also in 1929 made lic policy, to recognize a property right Mr. TYDINGS. Let me point out to a promise that you, the United States in the red cross emblem by anybody else the Senator the lapse in the continuity Government, would stop the use by oth­ than the Red Cross Society since the of the American Red Cross as he de­ ers of this emblem of the Red Cross." adoption of the treaty of 1861:; and third, scribed it so eloquently in his address. That was an obligation of the great that it makes no difference at all that First, the Senator now admits that the Government of the United States in the United States did not become a party first Federal statute incorporating the conjunction with 63 other governments. of that treaty until 1882. The existence American National Red Cross was passed, That is why when the time comes, as it of the Red Cross in 1864 as the result of to be exact, on June 6, 1900. Up to that has today, it is the duty "of Congress­ a treaty among Other natiOnS, recognized I good hour the Red Cross organization, and there is no escaping it; it is an obli­ by our own citizen, Clara Barton, who ap­ as a governmental agency; had no more gation that is far above any suggestion plied this mark to her arm in the form of standing than the Potomac Electric of damages, no matter should there be a band as a badge of her humanitarian Power Co., which is also incorporated a legal right to damages because of this service in the Civil War, as it was by under the laws of the United States re­ legislation-to consider first the execu­ other societies predtcessors to the Red lating to the District of Columbia, under tion of that international pledge. Cross before that time, makes it perfectly the same incorporation laws under which Mr. TYDINGS. Mr. President, will clear to me that we would be doing some­ the American Red Cross was incorpo­ the Senator yield further? thing odd, something strange-as I re­ rated, and to call the Potomac Electric Mr. AUSTIN. I yield. call the Senator from Michigan called it Power Co. an arm or agency of the Gov­ Mr. TYDINGS. The Senator has said "cockeyed" not long ago when we had ernment of the United States would be that the Treaty of Geneva, which was this matter before us-if we undertook totally erroneous. So, to call the Ameri­ made in 1864 when the United States was to adopt an amendment which would can Red Cross at that time, which was not represented as a party, was ratified really create a right where none exists, a incorporated under the same statute, an in 1882. That is correct. But prior to right in the emblem of the Red Cross. arm of this Government is to be equally 1882 before our Government took official I cannot subscribe to that, and so I shall erroneous. cognizance of the status of the Red vote against the amendment of the Sen­ Mr. AUSTIN. Will the Senator yield Cross as a humanitarian and welfare or­ ator from Maryland. for a correction? ganization three concerns in America Mr. TYDINGS. Mr. President, I Mr. TYDINGS. Certainly. were using in bona fide fashion the red should like to say to my eloquent and Mr. AUSTIN. If I stated at any time cross as a symbol of their brands. What able friend and colleague from Vermont in my remarks, today or before this, that the Senator has said, in my judgment, that, as I analyze his address, he has laid the Red Cross Society was an arm of the applies to all those who used the red down a set of conditions by which he United States Government, it was an in­ cross symbol subsequent to 1882, but I do hopes to support his case, and then in advertence. I am not aware of ever hav­ not think it can be questioned that until reaching his conclusion has abandoned ing made that statement. My opinion is official action was taken by our Govern­ the conditions on which his case is that it is not. ment those who adopted the red cross as predicated. Mr. TYDINGS. I thank the Senator. their trade-mark and symbol before 1882 The Senator says it is true there was He left us all under the impression that were well within their legal rights in do­ a Geneva Convention of August 22, 1864, because of the treaty, the Red Gross had ing ·so, and that subsequent action by the which adopted the red cross as a symbol, been a sort of a governmental child all Government cannot deprive them of and he concedes that the United States the way through, and I first wanted to those rights except by due process of was not a party to that convention. clear the atmosphere of the idea that law. Later, the Senator says, in 1882, the the Government had any form of con­ Mr. AUSTIN. I disagree wholly with United States did adopt the convention nection with the American Red Cross the Senator, and the reasons are those by treaty. Still later, he admits, in 1905, Society before 1900, and the Senator says which in part, I have stated. I will state the Congress of the United States took I am correct in that respect. now a further reason. lf they were to formal action, as a government, to recog­ While the Senator was speaking he was rely merely on the question of compe­ nize for the first time an organization kind enough to yield to me to say that tition and priority of use, they would not called the American Red Cross. Prior to the red cross emblem is used by the have a leg to stand on. Not one of them that hour the Government of the United American Red Cross Society today, and has the priority of use over the Red States never recognized the American it is a badge of honor, it is a badge of Cross when we take into consideration Red Cross formally. If I am wrong in humanitarianism, a badge of brotherly the successive users by the predecessors that, I stand to be corrected. love, a badge of civilization. Humani­ of the present Red Cross. Mr. AUSTIN. Mr. President, if the tarian service is the field of its operation. Mr. TYDINGS. Mr. President--­ Sen.ator will permit me a moment, it is Elsewhere the red cross emblem is a Mr. AUSTIN. Just a moment until I merely a question of date. I think that badge for shoes, or a badge for milk, or finish, and then I shall yleld to the Sena­ Clara Barton had a charter-- a badge for clothing, or a badge for fur­ tor. I have a statement which came Mr. TYDINGS. I am talking about niture. There is no conflict at all, and before the committee. I shall not read it the Government of the United States. the point of my argument is that in all, but merely a short extract from it: Mr. AUSTIN. I am referring to the order for the right to use the red cross The American Red Cross, or its predeces­ Government of the United States. I symbol to be legal, the right must be sor societies. have used the emblem since think it is fair to say that the District of continuous, it must be uninterrupted, it August 22, 1864, the time of. the ratification Columbia being under the jurisdiction of must be in the line for which it is used. 1944 CONGRESSIONAL RECORD-SENATE 3651 whether it be humanitarianism, or shoes, power of government tcr prohibit its use for 1 given before a committee, which I quoted or ships. Otherwise it lapses, the court purposes of advertising. awhile back, said the users of the red says. It must be used like a muscle in Mr. TYDINGS. The Senator went cross emblem before the American Red order to possess it. over that, and I am not arguing about Cross Society was incorporated had a Mr. President, where does that take the flag. valid right to it, and they could be ex­ us? The American Red Cross never Mr. AUSTIN. But there are other empted from the provisions of that act, used its label in any other direction ex­ illustrations. and Congress in its very first act said cept in the field of humanitarianism. Mr. TYDINGS. The flag, however, in that it should not prevent those persons Therefore, there was no legal conflict in my opinion, does not furnish an argu­ who had beem using the red cross here­ its use in any other field. Property ment which is on all fours with the red­ tofore, before the American Red Cross rights have been developed and built up cross emblem. Society was formed, from continuing its in other fields, which now, in a broader Mr. AUSTIN. I wanted the Senator use. It is with respect to one of those and more enlightened day, we are asked to understand that I take the position individuals that I say now, "If you are to strike down with one fell swoop. that the emblem of the Red Cross is in 1 going to take it away after by direct So, when the Senator says that there the same class or category as flags of language having let him use it for all was an infringement of the trade-mark, 1 nations, of towns, of regiments, and so these years, at least give him a day in that is not accurate, for if there had on. It is an emblem representing an court." been an infringement of the red cross organization which is of sufficient im­ Mr. President, why was it that in the trade-mark, the Red Cross Society could portance to place the emblem into the first act of Congress the users of the red have put one of these companies out category of flags. cross emblem were not prevented from of business, and that would have served Mr. TYDINGS. I do not agree with using it further? Why was it that in the notice on all the others. that statement, but even if it were so, the first act creating the Red Cross by con­ I will tell the Senator why the Red flag is as old as the country, but the Red gressional statute words were inserted to Cross has never brought any action in Cross is only as old as the first congres­ the effect that "this act shall not apply any court of law to stop these compa­ sional statute, which was passed in 1900. to those now legally in possession of red _nies, who come by the right legally, from Let me state briefly the chronology of cross trade-marks, who had them years using the red cross as an emblem. It is 1 the red cross to show the Senate what prior to the incorporation of this society because it cannot do so. One cannot use I mean. in 1881"? It was because then and there the red cross for one purpose only and Beginning at least as early as the the officials of the Red Cross Society, stop someone else from using the same eleventh century, the red cross became a: testifying before a congressional com­ trade-mark for another purpose. The permanent and familiar symbol in mittee, said they thought it was only fair decisions of the Supreme Co1:1rt by the Christian countries, and since 1189 has and right to do so. In my humble judg­

dozens are to that effect. One can pl'o­ 1 been a national emblem of England. ment the Congress then and there by tect only his own particular line of On August 22, 1864, the Geneva Con­ exempting the prior users of the red goods. Today there are Red Cross vention adopted "a red cross on a white cross gave them legal clearance to con­ shoes, there is Red Cross food, there ground" as its symboL The United tinue its use, and they have done so up are Red Cross medical supplies, and States was not represented. t(!) this hour, but now in 1944 Congress so on. In 1866 there was appointed the Bel­ proposes to take that right away from Mr. AUSTlN. Will the Senator yield lows committee, whieh .had· "an ephem­ them, after Congress has by its official further? eral existence," and dissolved in 1872 and express sanction given the use of the Mr. TYDINGS. I yield. without taking action. red cross trade-mark to those who had Mr. AUSTIN. I do not think the Sen­ In 1869 Miss Clara Barton, founder of that trade-mark long· before the Ameri­ ator is recognizing the exception to the the American Red Cross Society, first can Red Cross Society was incorporated. rule, and the exception applies to just heard of the Geneva Convention. Mr. President, I do not believe the bill such emblems as we are discussing here From 1872 to 1905 numerous firms­ before the Senate is constitutional. I today. Of course, the most notable ex­ of which not more than a dozen are love the Red Cross as much as anyone amples are those whicli governments still in existence and using the mark­ can love it. I like its purpose. I am use. adopted as a trade-mark the historic a contributor to the Red Cross. I would In the case of Halter v. Nebraska (205 symbol of the red cross or the words do anything I could to aid its welfare. U.S., 34)-and I have no doubt the Sen­ "red cross" or both. And at least three I think it is one· (i)f the finest organiza­ ator is acquainted with the decision­ present users, or their predecessors, tions in the world. But simply because the court dealt with a statute which was started use prior to 1881. Canepa Co., that is so it 1-s not entitled to take the the outgrowth of the treaty relating to of Chicago, in 1872 adopted the symbol smallest advantage o:f any person who, migratory birds. In the course of the on macaroni and has, been using this standing before- us as a free citizen of opinion appears the fallowing: trade-mark on its product cont~nuously this country, is entitled to a square deal It is familiar law that even the privileges ever stnce-70 long years. Seabu:r.y & and 'the right to possess whatever he has of citizenship· and the rights inherent in per­ Johnson, predecessor of Johnson & won honestly and within the laws of our sonal liberty are subject, in their enjoyment, Johnson, started using the historic sym­ own country. to such reasonable rest11aints as may be & We should not overplay the humani­ required for the generrel good. bol in 1879. Charles B. Stiver Son claim continuous use since 1876. tari~n side of this matter and lose sight Mr. TYDINGS. That is correct. In 1881 an American committee formed of the real merit of the case, even though Mr. AUSTIN. The opinion proceeds~ by Miss Barton in 1877 incorporated it be the poorest citizen of this great Re­ Nor can we hold that anyone has a. r.i.ght under the name "The American Asso­ public whose rights are involved. De­ of property which is violated by such an ciation of the Red Crossr'' mocracy does not consist of giving pro­ enactment aa the one in question. This is the point: Five years before tection to large and powerful groups. It the American Red Cross Society was consists in the willingness of the Govern­ Mr. TYDINGS. Inclliding the red ment to go to the side of the most hum­ cross. first incorporated Charles B. Silver & Son were in business a:nd using the red ble citizen in our whole land and to see Mr ~ AUSTIN. No. to it that he recetves the same consider­ Mr. 'FYDJlNGS. ·I include that be­ cross symbol all over America. The or­ ganizations which existed before the ation and justice that the most powerful cause "anyone" means, "everyone." may receive. Mr. AUSTIN. That is not in the American Red Cross were nebulous. They were bound together by' no law, no I am speaking for one little man only, opinion. I. have not finished the· read­ in a little country town. Whatever the ing. I continue to read as follows: rule, no incorporation. Nothing existed except the name. The point that Congress does, it will not result in mak­ If it be said that there is a right of p.~:op­ clinched the argument was made in con­ ing me any worse off or better off. It erty in tl:le intangible thing upon which. a. will not help or- hurt my political career. . representation of the fiag bas been placed, nection with the first act of Congress. the answer is that such representat16n­ Miss Mabel Boardman, one of the finest It will not benefit or hinder me in any which in itself. cannot belong, as property, to citizens of this Republic, and for 40 or 50 way of which I can conceive. I am here an individual~has been placed on such a years the head· of the Red Cross in this experrdi:ng of my energy and fighting this thing in violation of law and subject to the city and in the Nation, in testimony battle, because I believe it to be my duty 3652 CONGRESSIONAL RECORD-SE-NATE APRIL 24 to see to it that no man, black or white, no compe.titive status is destroyed. trade-mark in place of the one taken rich or poor, high or low, shall haye his When we protect · the American Red away, and that it would be harsh to take rights confiscated by legislative fiat, by Cross in the use .henceforth of the red it· away overnight, because they would the Senate .of the United States, no mat:­ cross symbol, we are not denying· to -Mr, lose their business, but. if they had two ter how worthy the motive behind the Silver any remedy \Vhatever. Quite th~j trade-marks simultaneously so that they proposed action may_be. contrary, Mr. President, we actually say could make the transition, the loss would· Mr. President, I ask for the yeas and in this bill that he will be permitted to be reduced to a minimum: Therefore, I nays. use . the symbol over the next 3 years, do not believe the Senator from Con­ The yeas and nays ~re ordered. provided he actually had a lawful use necticut, well meaning though I know Mr. O'MAHONEY. Mr. President, I prior to 1905. \Ve also say that his him to be, is accurate in what he says suggest the absence of a quorum. . jobber and distributor may distrihute. when he maintains that a trade-mark Mr. DANAHER. Mr. President­ We even say that until 1950 the retailer· can be taken away overnight without loss Mr. O'MAHONEY. Mr. President, I may dispose of the goods· on his shelves. to the person who for many years has am willing to withhold my suggestion of So during the period in question, Mr. been doing business behind that trade-: the absence of a quorum if the Senator Silver, or anybody who might take from marie from Connecticut wishes me to do so~ him if he were to make an assignment Mr. DANAHER. Mr. President, I did Mr. DANAHER. I thank the Senator. of his whole business, including the· not say that it would not be harsh. I Mr. President, the Senator from Wyo­ trade-mark, would be completely pro-. did not say that it could be done without ming has stated that he is willing to tected; and from 1950 forward there loss. I would not have the S~nator from withhold his previous suggestion of the would be no need for it,_because no com-, Maryland think me that naive, and I absence of a quorum. So far as I am petitor could use the C. B. Silver red . would not have him ascribe such state­ concerned, that is an agreeable course. cross mark anyway. Is not that a ·fact? ments to me. Of course there is no I wish the RECORD to show simply that Mr. TYDINGS. Mr. President, will question that ther~ would be loss. All I I am opposed to the motion to reconsider. the Senator yield? · saiq was that, as a matter of law, if we In that connection I submit a few of the Mr. DANAHER. I yield. have the right to act at all, we may act reasons which, it seems to me, justify 1\!lr. TYDINGS. Why give him 3 tomorrow as well as 3 years, 6 years, or 9 our refusal to reconsider our ·previous years, if there is no loss? years hence. There is no question about· action on Senate bill 469. Mr. DANAHER. Mr. President: we that. I pointed ·out that the Committee Mr. President, in the first place a sug­ take account of the fact that there have on the Judiciary· was simply trying to gestion has been made that we would be been bona fide users. We have always tide over those who, in fact, had estab­ denying someone of just compensation done so. Vve say that there are those lished lawful use of the red cross as a if we gave to the American Red Cross who have goods on their shelves; there symbol prior to 1905. That m1:1ch we_ the exclusive use of this symbol. Let it are manufacturers who have tooled up do. That is all we do. But even so, be made perfectly clear that we are not their plants to produce given items; we we condition our grant of permissive· use' taking anyone's business away from him, say that there are legitimate distribu­ uppn th:ree. factors~ all of which appeal: we are not condemning his property and tors and wholesalers who have invested· on page 4, lines 3 to 13 of the bill, one converting it to public use. No con­ their money, and whose inventorie§. of them being that any legitimate user· demnation of that sort is involved. would be affected. We say that there who seeks to convert must set forth the· Quite the contrary, Mr. President, the are retailers who have goods on their new trade name, and will thereafter be fact remains, and it is the law, and the shelves which the pu'!:>lic may b~Y. at permitted to insert, if he· does set forth Senator from Maryland has correctly least until 1950. So, in the interest of the new trade name, "Formerly Red stated it insofar as he has defined the protecting all those whose capital is thus Cross," thus identifying his product and status of a trade-mark, that one of the invested in inventories upon which the giving it continuity in the marts of .trade. functions of a trade-mark is to identify red cross as a trade-mark would be used So far as the matter of compensation the source from which a particular arti­ as a symbol or emblem, we say in the to C. B. Silver Co. or an·y other user cle comes, to the end that the producer bill that there will be no commercial prior to 1905 is concerned, it is in no of the item may protect the product, so stigma attached, and no violation of our way · whatever contingent upon any identified, in the marts of trade against penal statutes would follow, if within the claim, as has been set forth here, that improper competition. permitted period they dispose of the we are taking away a property right as Thus, Mr. President, the Senator from goods on hand. such, which, by way of condemnation Maryland would certainly be bound to Actually, Mr. President, since we pro­ or otherwise in the name of the United admit that there could be no assignment ceed under the treaty, there is no legal States Government, entitles that indi­ by the C. B. Silver Co., of Havre de Grace, reason why we could not tomorrow ex­ vidual to compensation. That is simply Md., of its ownership of its trade-mark tinguish the use of the mark by anyone. not so. · · unless it transferred its business or the The fact remains that we are eminently Mr. AUSTIN. Mr. President, will the goodwill of the business to which that fair to those people in taking the posi­ Senator yield? mark is attached and with which the tion we take. Mr. DANAHER. I yield. Silver Co. business has heretofore been Mr. TYDINGS. I do not know whether . Mr. AUSTIN. One thing is perfectly identified. Thus, Mr. President, · if a the Senator was present this morning; obvipus, in my opinion, and that is that person in an adjoining community but I read a long list of Supreme Court we do not have to give anything to the were to set up· some competitive lifle of decisions, all to the effect that trade.:. Red Cross. The Red Cross now has the canned goods and were also to attempt marks were property. I also referred to emblem. to market them under the name and a great many sales of .trade-marks, some Mr. DANAHER. There is no question term "C. B. Silver Red Cross Canned for as much as $40,000,000. I showed about that. I thir;tk it is clearly estab: Goods," if that be the correct designa­ that the Coca-Cola Co. had in excess of lished. I will go further and say that tion of the · name, the constituent for $4,000,000 of assets in one of its state­ if there never were a Red Cross Sockty · whom the Senator from Maryland so m~nts, and had $34,000,000 worth of until tomorrow, and if we should there­ eloquently pleads, as the law now stands, trade-mark goodwill. The stock of that upon incorporate one and, having in­ could properly go into court, could prop­ company is selling on the basis of the corporated it, should enter into a treaty erly invoke injunctive relief, and could goodwill built up. I likewise show~d among 30, 40, or. 50 nations, under the otherwise seek to protect himself against that if the Coca-Cola name were changed terms of which we might agree to pro­ the improper competition of the busi­ to Berry Cola, all of the goodwill built tect the emblem which we give it; I do nessman in the adjoining community. up would be lost. It would be necessary not care how many prior users there But, Mr. President, if the Congress of to build all over again the goodwill for might be, if there were any hitherto the United States, acting properly, says the product. utilizing the red cross as a trade-mark, that neither Mr. Silver nor the man in The Senator. from Wyoming [Mr. we still would have the power so to act. the adjoining community may use that O'MAHONEY] stated that the reason the Those who adopt a contrary view, let me mark at all, neither gains an unfair ad­ 3-year provision was made .was to allow say to the Senator from Vermont, com­ vantage over the other, and consequently users of the symbol to build up another pletely fail to regard the fact that when 1944 CONGRESSIONAL RECORD-SENATE the Congress acts with the Executive iri States, through domestic law·, will exe­ Mr . . TYDINGS. What happens? making a treaty, we participate in law­ cute the politfcal duty which we hither­ What would be 'the result? making upon a completely different to assumed. That is what we say, and Mr. DANAHER. As a result we say ground than . when we exercise purely that is all we are doing. There is no that Mr. C. B. Silver, of somewhere in · legislative powers. In this particular taking by the Government of the prop­ Maryland, who once was able to protect case, the legislative branch and the erty of anyone. himself in the courts of Maryland executive branch, _through their joint Mr. TYDINGS. What the Senator is against competition if anyone other than treaty-making powers, actually did enter saying is simply this: If we make a treaty he put out canned pears or fruits under into a treaty which would protect this with foreign nations providing that every , the red cross label, will no longer have emblem. twentieth house in America shall be lev­ to protect bimself, because we say that Mr. TYDINGS. Mr. President, will eled to the ground and if the Senate in neither· Mr. Silver nor his competitor the Senator yield? its wisdom ratifies the treaty it will be may use the red cross, and therefore he Mr. DANAHER. I yield. the law of the land under the treaty­ has lost nothing. Mr. TYDINGS. As I understood the making powers of our Congress. With Mr. TYDINGS. He has not even lost Senator a moment ago, it seems to me · that, I agree. However, at the same time his trade-mark, has he? that he stated a rather novel proposition the Government, in carrying out that Mr. DANAHER. He has lost nothing. of law, namely, that if there had been treaty, will have to compensate out of Mr. TYDINGS. Has he lost his trade­ no Red Cross before, and we were to the F'ederal Treasury the twentieth house mark? create one tomorrow, even though there· owner whenever the house is leveled, or were 50 bona fide users of the symbol ·. else at the time of the leveling the citizen Mr. DANAHER. He has lost his use who had used it for 50 years, we could may obtain an injunction, or pursue in court of a basis upon which to estab­ lish unfair competition should there be provide that hereafter they could not whatever legal methods will stop the · any. use it. I will concede that that is true Government from actually taking pos­ as an abstract proposition, pY.ovided that · session of the property until the citizen Mr. TYDINGS. I asked the Senator at the same time those who legally used is compensated. That is not what the the specific question, Has he lost his it heretofore were compensated for the Senator is saying. He is saying that if trade-mark? loss of their property. The mere making we make a treaty to level every twentieth 1\..fr. DANAHER. No. of a treaty does not take from a citizen house, the Government can level every Mr. TYDINGS. Can he still use it any fundamental right guaranteed to twentieth house and pay nobody any­ after the enactment of the proposed leg­ him by the Constitution. In fact, we · thing for the property. islation? can -adopt no treaty which transcends Mr. DANAHER. Mr. President, let the Mr. DANAHER. He may use it during the Constitution. If we could, we could RECORD show that the last three or four the period which the Congress desig­ use the· treaty-making power to amend hundred words have been uttered by the nates. the Constitution of the United States. · Senator from Maryland. That is not Mr. TYDINGS. Then I ask the Sena­ The Senator will remember that the only what the Senator from Connecticut has tor if Mr. Silver will have lost his existing way by which the Co'nstitution can be been saying. It is what the Senator froni trade-mark at the end of 3 years. amended is provided for in the Constitu­ Maryland says. It is what he would put Mr. DANAHER. On July 1, 1950, 11-e tion itself. We may adopt treaties which into my mouth, but which I refuse to will no longer be allowed to use it in the modify certain things, which we have accept as being what I have said. I do marts of trade, but that does not in any heretofore done but, in my opinion, we not make any claim that we have a right way involve a loss of the trade-mark. cannot adopt a treaty which funda~ to take every twentieth house, with or Mr. TYDINGS. But he will have lost mentally alters· the Constitution of the · without compensation, or that we may his trade-mark in 3 years. United States. adopt any such treaty as'the one to which Mr. DANAHER. Oh, yes; he will have Mr. DANAHER. I am glad the Sen­ the Senator has referred, or ratify it, lost his trade-mark so far as manufac­ ator added "in my opinion," because his· or so act in any guise whatever. I make turing is concerned. He cannot manu­ statement sets him somewhat at variance no such claim; not only that, but there facture under it. with the Supreme Court, which has held is no analogy whatever between the Mr. TYDINGS. Is it worth anything? otherwise. ridiculous hypothesis which the Senator Mr. DANAHER. Not a nickel. The fifth and the fourteenth amend­ from Maryland would create and then Mr. TYDINGS. It is not worth a cent? ments are in nowise involved in this in­ call an anomaly and the present situa­ Mr. DANAHER. It is not worth a stance, if we, in the performance of our tion confronting us. There is no such nickel. treaty-making powers, choose constitu­ anomaly on the facts. Mr. TYDINGS. It has no value? tionally, as we are permi~ted to do, to lVIr. TYDINGS. I do not think there Mr. DANAHER. It is not worth a disregard both. is an anomaly at all. I think it is a nicltel. Mr. TYDINGS. I am not arguing that similar rather than an anomalous case. Mr. TYDINGS. Did the Senator hear point with the Senator. The point I am The Senator has said that we could adopt me read a long list of trade-mark sale trying to bring · out is that if the Red a treaty and take away the property values earlier in the day? Cross were created tonight, and if the right of all those red cross trade-marl~ Mr. DANAHER. Yes. red cross trade-mark, used by 40 per­ owners without compensation to them, sons, coul(. no longer be used in the fu­ and I see no difference between that Mr. TYDINGS. Why was so mu~h ture the treaty could be adopted. It situation and adopting another treaty paid for those trade-marks? would be a good treaty, but that would providing for the leveling of every Mr. DANAHER. Why was $300,000,000 not permit the Government to take prop­ twentieth house without any compensa­ paid only recently for the stocks in a erty without due process of law. That tion to be paid to its owner. whisky .. distillery business? Because the provision would still be in the Constitu­ Mr. DANAHER. Mr. President, once purchasers obtained the assets, the good­ tion. again the Senator from Maryland has will, and also the trade name. Mr. DANAHER. Does not the Senator said that by a treaty we are trying to Mr. TYDINGS. Yes; and the good­ see that that is exactly the point at which take away the property rights of users will; what is "goodwill"? he comes so close to being right, and then of the red cross emblem. That is exact­ Mr. DANAHER. YK/e may adopt the veers off each time he gets there? He ly what I say we are not doing. The definition once used by Justice Holmes, says that the Government would be tak­ Senator from Maryland argues that, that it is the disposition of a satisfied ing property without compensation. not I. customer to return to the place where Mr. TYDINGS. For the public good. Mr. TYDINGS. What are we doing he has been well treated. Mr. DANAHER. The Government is then? Mr. TYDINGS. The trade-mark taking the property of no one, with or Mr. DANAHER. All we are doing is would show where the customer obtained without compensation. The Government implementing through legislative act a his goods, and the Senator would move is simply saying that pursuant to a po,;, treaty which we are bound to implement a man's place of business, theoretically, litical duty upon which our country has when, pursuant to proper constitutional or take ·away his trade-mark so that all now engaged, through the proper con­ and political action of this Government, his goods would be destroyed, and then stitutional methods, we in the United we bound ourselves. say that he had not lost anything. XC--231 3654 CONGRESSIONAL RECORD-SENATE · APRIL 24 Mr. DANAHER. No; the trade-mark .Mr. DANAHER. I say to the Senator 1s t:he name 'Chandler Shoes'." Does which designates the place of origin, or from Vermont-and I thank him for em­ the Senator understand that we could tlile source of goods, is designed through phasizing the point-that we bound our­ lawfully through our company dispose common law and statute law to protect selves to take the necessary action, what­ of the trade-mark "Chandler Shoes" the user against fraud or the owner of ever it should be, and whatever the words . without the goodwill adhering thereto, goods against unlawful competition, and may be, to accomplish the objective or without disposing of the assets of the we step in and say in effect, "We will toward which we bound our international business? protect you against unlawful competi­ good faith. We can be satisfied with no Mr. CHANDLER. Trade-marks have tion or any other type of competition re­ less. been sold, I understand, as property. sulting through the use of the red cross Mr. CHANDLER. Mr. President, will Mr. DANAHER. Does not the Senator as a trade-mark, and you have lost noth­ the Senator yield? recognize that we would have to transfer ing." Mr. DANAHER. I yield. . all the assets out of which the goodwill Mr. FERGUSON. Mr. President, will · Mr. CHANDLER. I am anxious to get attached to the trade-mark derives? the- Senator yield? back to the question of not tak~ng any­ Mr. CHANDLER. If we wanted to Mr. DANAHER. I yield. thing away from the Silver Co. in Mary­ make more shoes we could later make . Mr. FERGUSON. Is the argument land. I want to support the Red Cross, more shoes and call them by some other proceeding on the theory that we have by and I should be glad if we could reach name. treaty agreed to enact this legislation? some equitable and just basis to permit Mr. DANAHER. I am trying to estab­ Mr. DANAHER. We have by treaty the Red Cross the exclusive use of this lish in the mind of the Senator that there given the International Red Cross a dis­ emblem. is a common misapprehension as to the tinctive status; and all nations signatory Mr. DANAHER. That is what we are status of a trade-mark. It is necesssary to the treaty, in terms-the exact lan­ trying to do. to assign with the trade-mark the assets guage is not available to me-- Mr. CHANDLER. That is the object of the business, or its inventory and good­ Mr. FERGUSON. I have it before me. of the bill. I do not believe that any will, to go vl1th the trade-mark, to give Mr. DANAHER. In terms, agreed to Senator would be justified in casting his the latter the value which the Senator recommend to the legislatures of each of vote to deprive a citizen of Maryland of from Maryland would build up in the the signatory states the adoption of leg­ a property right which he has in a trade­ minds of the people by telling us that islation which will protect the status mark without due process of law, or Coca-Cola sold its trade name and all its about which we have agreed. without making some arrangement for business for $42,000,000 or whatever the Mr. FERGUSON. The exact lan­ him to receive just compensation for price. was. I do not know as to that. guage of the treaty is as follows: whatever value the trade-mark may What· I am trying to make plain to. the The governments of the high contracting have. I do not believe we should deny Senator is that the real value is derived pa.z:ties whose legislation may not now be him a day in court so that he may assert not merely from the trade-mark; many adequate shall tak!e or shall recommend to or present his claim to a court of law. times it stems from the very existence their legislatures such measures as may be If we made a treaty by which we have and being of one man, who is the brains necessary at all times: obligated ourselves to enact a law, and and chie:ll asset of the business, irrespec­ (a) to prevent the use by private persons without the enactment of the law this tive oi the trade-mark. The name or by societies other than those upon which man would keep this trade-mark and 3!ctually does mean a very great deal. I this convention confers the right thereto, of agree to that, and I agree also that a the emblem or of the name of the red cross whatever value it may have and he used or Geneva. cross, as wen as any other sign it prior to the time we recognized the valid trade-mank. protects the owners, or designation constituting an imitation red cross as a national emblem, then it the Senator from Kentucky and me in thereof, whether for commercial or other belongs to him and he has a right to use our hYiilO.thettcaJ case, against the unlaw­ purposes. it. I am willing to take· it away from ful competition of the Senator from Ten­ him in the interest of humanity and nessee, whCll might, if he chose, frauda­ So, do not the contracting parties per­ justice, but I am not willing to take it lently try to participate in the goodwill form their duties when they recommend away from him if we impose upon him we had built up. Then we could go into to their legislative bodies that the Red and cause him to suffer loss and then court and sue him, enjoin him, and re­ Cross emblem be protected? deny him an opportunity to go into a cover damages from him. Mr. DANAHER. The Senator has just court of law and have the court say · Mr. McKELLAR. Mr. President-- reaCii the words "shall take or shall rec­ whether or not he has been deprived of Mr. DANAHER. So I say to the Sen­ ommend," has he not? his property without due process of law. ato:r from Kentucky that we must draw Mr. FERGUSON. Does the Senator What does my friend from Connecticut the line at that point. That is exactly consider that language to be an agree­ say about that? wh&a so many here have failed to draw ment that the Congress shall enact the Mr. DANAHER. Suppose tomorrow the line, and that is why it is that the Pi'oposed law? the Senator from Kentucky and I were Senator from Maryland! can make his Mr. DANAHER. I know, and so does to incorporate for the manufacture of arguments sound so plausible to a good the Senator from Michigan, that no prior Chandler Shoes, that we made an ex­ many of our colleagues. 'We on the com­ Congress, including the one of 1929, had cellent grade of shoes, and)et us say, for mittee who have had to liv.e with this the power to bind us in 1944 to take any present purposes we fixed a price of $7 question for many months recognize very particular or specific action or even to a pair on the Chandler shoes, and adver­ well that the way we brought the bill out adopt the very language of the bill itself. tised them, and people thought they were is the only way properly to accomplish The Senator knows that and I know it. pretty good shoes; certainly the Senator the objective we are all willing to estab­ However, we are certainly bound to do from Kentucky would think that once lish and wish to accomplish. everything we possibly can do, and to we established the lawful use of a well­ I now yield to our honest competitor take whatever action is necessary in known mark to which goodwill attaches, with an inf.etior line. order to accomplish the objectives with no other competitor could use larwfully Mr. McKELLAR. Mr. President, if I reference to which our international our agreed upon trade-mark of Chan­ Uiilderstand what the Senator says it is good faith is pledged under the language dler Shoes. We could register that that a trade-mark by itself has no value. of the treaty. trade~mar,k with our Government BIU­ Mr. DANAHER. That i-s right. Mr. AUSTIN. Mr. President, will the t.horities if we wished to register it. We Mr. M.c!:KELL.AR. Will. the Senator let Senator yield? would not have to do it; we could acquire me give 1nim a concrete example? Mr. DANAHER. I yield. a right at common law to the exclusive Mt: D~AHER. Certainly. Mr. AUSTIN. The Senator from Con­ use of tbe name "Chandler Shoes." Now Mr. McKE'E.I.AR. Several years ago necticut has no idea that the Department along comes a prospective customer who we had pnohibition. Before prohibition of State and the Chief Executive em­ says to us, "Will you sell me the t:rade­ cam:e there was a distiller in Tennessee ployed that language to. fool anyoner has mark 'Chandler Shoes', merely the trade­ by t:lng name of Jack Daniels, who made he? mark. I do not want your place of ".Iack.I.la.niel's" cascade sour-mash liquor Mr. DANAHER. If that were the case, business; I de not want your machinery, which 0btained a great reputation. He· the words would be weasel words. I do nCllt wamtt your industrial plant or left in his will the distillery and the Mr. AUSTIN, Of couJ.:se, we did wt your sales staff or your advertising-copy tra.de-mark he. had es.tablished for this do that as a great Nation. writers; I want none of them; all I want liquor to his nephew, a very fine gentle- 1944 CONGRESSIONAL RECORD-SENATE 3655 man, elderly now, by the name of Lem in a period like that, and give it use, and The PRESIDING· OFFICER. Sixty­ Motlow. Prohibition came, and after it give it validity, and go out and advertise six Senators having answered to their had been in force for a number of years and build goodwill around it. By the names, a quorum is present. and seemed destined to last for a great same token, let me point out, names are The question is on agreeing to the r.1any years, as it was in the Constitu­ taken over, like Old Overholt, Old Fitz­ motion to reconsider the vote by which tion-fer there was not very much con­ gerald, perhaps Kentucky Pride, or the bill