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Well, there was a case where a firm in Minneapolis had used a certain trade-mark on flour, and a firm in Georgia had used exactly the same trade-mark on flour, and finally one learned about the other and tried to stop him, and the Supreme Court said in substance:

No; there is a geographical distribution here. You have your goodwill in the North, and they have their goodwill in the South, and you never meet, and you never have met, so the people in the South are not deceived because you use this mark in the North, and vice versa. Mr. VORYS. Could I ask one more question?

The American Red Cross has told us that the use of the symbol and the name is detrimental to them, and that is a matter that we will have to decide upon, but if it should appear to us that the use of this symbol interferes with the functioning of a voluntary organization, which does not have a lot of hired people to police the field, which depends on voluntary contributions of money and time to perform a vital work, is it your judgment that there is just nothing to be done about it; that it is just one of those things that is too bad, but that even though we would feel the users of these trade-marks are benefiting by the increased interest in the Red Cross now, and that even though we would feel that there is a certain confusion which is detrimental to the American Red Cross and beneficial to the institutions who can take advantage of the great interest in the Red Cross, are we faced with one of those situations where it is just too bad, or is there something that could be done about it?

Mr. HOLMES. Well, of course, there are a lot of questions of fact there. Is it detrimental, and how detrimental? Is it so detrimental that you should take very drastic remedies, or are there detriments, things that can be taken care of by gentler measures, such as the matters involved in enforcement? It seems to me that that is a matter for the law-enforcing agencies. Why should not the Department of Justice have a man delegated to that job, or the Federal Trade Commission? That can be taken care of very simply, it seems to me.

Mr. VORYS. Let me suggest there, I have been on a board of a Red Cross chapter where these complaints come to us, and people who are volunteers say why don't you do something about it to us who are also volunteers, and we go to the local district attorney and he is busy. It might not be sufficient to say merely that this vast volunteer organization should go ahead and get the law after people.

Mr. HOLMES. Well, of course it is awfully unfortunate if you take an hour in any policing, but we have got to put up with certain things in this world in favor of others, and I do not think it is out of date to still talk about vested rights. I do not like that word "vested," but established rights, certainly. We are dealing here with quite a fundamental national policy, I feel, and we must weigh the force and nature of that policy, and its effect if altered in this drastic way, upon thousands of workers, and 10 or 12, I do not think that there are more very substantial businesses which have gone ahead in good faith, and weigh that together with your sense of the good faith of this country, to its citizens who have gone ahead in confidence in that good faith, against the irksomeness which undoubtedly is involved in some of this policing. We do a lot of policing ourselves. We found a number of people using Red Cross mattresses, and we have written to the district attorney in a number of cases.

Mr. VORYS. In recent months the necessities of war have involved great injury to businesses that were built up with the utmost good faith, but the necessities of the war effort came first.

Mr. HOLMES. That is tragic.

Mr. VORYS. I do not think that we have altogether here a problem of merely policing those who are not acting in good faith. We have a clash of interests between the public interest and private interest, all of which were built up in the utmost good faith; that is our problem. Mr. HOLMES. I think, as Representative Casey said this morning, that is a tragic thing, these automobile dealers and so on, but let us at least try to minimize the tragedies.

Mr. VORYS. That is true.

The CHAIRMAN. Any further questions? I think we will have to get on. Thank you very much.

STATEMENT OF MR. BRIEN MCMAHON, REPRESENTING THE JOHN B. CANEPA COMPANY, MANUFACTURERS OF RED CROSS MACARONI PRODUCTS, CHICAGO, ILL.

Mr. MCMAHON. My name is Brien McMahon. I represent the John B. Canepa Company, manufacturers of Red Cross Macaroni products, of Chicago.

I am not going to string this out at all, because by this time you gentlemen are acquainted with the general problem, and I am here to devote my attention in about 5 minutes to our specific situation.

The John B. Canepa Co. has been in business since 1860; since 1872 it has been in the hands of the family that has it now.

The CHAIRMAN. Using the red cross?

Mr. MCMAHON. In 1872 they adopted the red cross trade-mark. In 1899 they registered it. In their registration statement they stated specifically, when there was no inducement to falsify the matter, they stated that they had been using it since 1872, and our files and correspondence show that that is correct.

Incidentally, you will notice that date is 9 years prior to the formation of the American Red Cross, in 1881.

The CHAIRMAN. That is, the first incorporation was in 1891.

Mr. MCMAHON. And I want to say this: That that is the only prodduct that this company makes and ever has made. We employ about 100 people. We do a volume of about $2,000,000 a year. We estimate that we have spent in excess of $2,000,000 in building up the trademark.

Now, there is one point that I would like to put to you gentlemen. In all of the years since the 1905 and 1910 acts have been on the books there has been absolutely no effort made by the Red Cross to enforce that act. If I might advert to my personal experience, having been for over 5 years the Assistant Attorney General in charge of the Criminal Division of the Department of Justice, I might say that never did we receive any communication during that time from the Red Cross asking us to prosecute any infringer of the statute.

I checked my recollection the other day and found out not only was that accurate, but that no case, as far as the records of the Library and the Criminal Division is concerned, has ever been referred by the Red Cross to the Department of Justice for prosecution.

So we have the case of seven or eight companies who have been using the trade-mark prior to 1905, who have invested

Mr. JOHNSON. Pardon me there. It has been said 11, and you say 7 or 8. Who knows about the accuracy?

Mr. MCMAHON. I have been taking the figure seven because I think Mr. Vorys used that figure a couple of times or someone else.

The CHAIRMAN. The representative of the shoe company said one thing; we can get that from the records.

Mr. MCMAHON. I took it from other witnesses.

Now, of course, gentlemen, I see at least for the last 10 days, I have seen at least one, and on some days, two businessmen who have been put out of business by some order from the War Production Board. Mostly men manufacturing in metals. We deal in macaroni.

I have had occasion to say to these metal men that it is just too bad, just nothing can be done about it. They have lost their investment, but of course they have got to subordinate that to the greater good. But I think that the answer to the question that Mr. Vorys posed to Mr. Holmes, if I might supplement his answer, we have here a conflict between the general good and some established rights and interests.

Now, really, isn't the question this: Do we have to abolish these established interests for the general good? Is it necessary? I claim that any fair appraisal of the problem will show that the better judgment, let me put it, the better judgment would be to leave these seven concerns alone, because in all of the testimony that has been given. here by representatives of the Red Cross, the Army, and the Navy, and by proponents of the bill I have not heard one single line of testimony which in my mind showed that the work of the Red Cross was being impaired or infringed upon.

Frankly, if I thought it was, I would not be here for this company testifying in opposition to this act.

Now, in other words, if the Red Cross would say to the Department of Justice, if they had said to me when I was in office, "Here are the facts, here is a company which has started in business in 1934 or 1935, and is using the trade-mark, and they have got no right to use it; we want them prosecuted," gentlemen, they would have been prosecuted. I think the question or the reason why it has not been done is Mr. Hughes' statement of a reluctance that the Red Cross engage in any litigation.

Well, after all, it is a semiofficial body; the courts of the United States are open to it, and I am sure that the Department of Justice would cooperate in every way with the enforcement of the present act if they were given the opportunity to do so.

The results to our business, I am afraid, will be fatal. I have talked at length with the officials of the company. They have got every dollar they have got invested in it; as I said, it is their only product. They can't call it Red Star macaroni. It is a highly competitive field. We ship in about 17 States, and we ship over 2,000,000 cases a year. It just strikes me that it certainly is a very harsh thing to put people out of business who have been engaged in it under the same name in a fair and honorable way since the year 1872.

Thank you very much.

Mr. EBERHARTER. They manufacture only macaroni?
Mr. MCMAHON. Only macaroni.

Mr. EBERHARTER. Not spaghetti or ravioli?

Mr. MCMAHON. Macaroni is our sole product; that includes spaghetti. Spaghetti is a form of macaroni in a peculiar shape called spaghetti.

Mr. EBERHARTER. And your position is that the use by the 7 or 11 companies does not really affect the activities of the Red Cross insofar as you can see?

Mr. MCMAHON. As far as I can see, Mr. Eberharter, it does not. Suffice it to say that certainly the Army or the Navy have not adduced here any evidence of any advertising by us which has drawn any attack or might be likely to. We have no Red Cross signs painted on any buildings. We have it on our product. It is known and it is respected and it is liked, and it is the third generation of the company, and if this law goes through, it is going to be the last generation engaged in this business.

Mr. JOHNSON. I have just one question.

Have you examined the Patent Office records to determine how many claimed to have registered before 1905? How many concerns that have filed claims that they had used it before 1905?

Mr. MCMAHON. I have not, Mr. Johnson, I regret to say. I have been taking that figure that has been given here.

Mr. JOHNSON. I understood that there are probably 200 that have filed registrations, claiming that they had used it before 1905, and I did not know whether that was true or not.

Mr. MCMAHON. At any rate, apparently we are in agreement. It is either 7 or 11 that are still in business that were in business.

Mr. JOHNSON. A great many of these who had filed had gone out of business.

Mr. MCMAHON. And under the present law they cannot come back. I would be glad to show the committee, and leave with the committee I would like to get it back if I could our trade-mark showing it was applied for in 1899, and showing further that when we applied for it we had been continually using the mark since 1872. The CHAIRMAN. I think that your statement will be sufficient. Mr. VORYS. Have you any copies of your advertising that you could leave with the committee?

Mr. MCMAHON. Yes, sir.

The CHAIRMAN. Have you got a letterhead of the company?

Mr. MCMAHON. No; I have not.

The CHAIRMAN. You use the Red Cross insignia on your letterhead or on your business card?

Mr. MCMAHON. Yes, sir; we do.

The CHAIRMAN. You would have no objection to stopping use of that, would you?

Mr. MCMAHON. No; we would not.

The CHAIRMAN. There have been quite a few objections made to the use of the Red Cross insignia on your business cards when you present it to your customers, and also on your letterhead. When a person gets the letterhead and it has the insignia of the Red Cross on it, it appears as if the letter was written by the Red Cross Society. You have no objection to taking that off?

Mr. MCMAHON. No; we have not.

Mr. JOHNSON. Have you any suggestions with reference to any modification of the bill that might correct some of the evil as pointed out by Mr. Hughes.

Mr. MCMAHON. Yes; I think that I can suggest this remedy. It is an immediate correlation by the Red Cross of the outstanding abuses; hand them over to the Department of Justice for them to ship out to district attorneys, and I guarantee that if there are four or five good prosecutions with the resultant publicity, that nine-tenths of what they think are evils today would be immediately stopped.

Mr. JOHNSON. I think prosecution is the complete answer.

Mr. MCMAHON. Yes; and I am frank to say that I cannot understand the reluctance of the Red Cross to enforce their rights under the acts that have been now given.

Mr. EBERHARTER. Along that line, do you think the law today is strong enough for the Justice Department to proceed? We have not had testimony from the Justice Department as yet.

Mr. MCMAHON. Yes; I think so. I think the chiselers, the people, when the Red Cross got to be an established organization, and were seeking to cash in with no effort on their part, on the Red Cross name, I think the act of 1910 takes care of them beautifully, and they can go after them, and when suitable punishment was meted out that would be the end of the problem.

But with our company starting in 1872, prior, we have not cashed in on the value, except as incidentally it was an accident.

The CHAIRMAN. How did you come to use it?

Mr. MCMAHON. That is an interesting question. The original founders of the company, of course, are dead and they have left no record. I have queried the officials of the company on how they came to use the mark, and, frankly, they are at a loss, having antedated any popular acceptance of the Red Cross with its present significance. might have been just an accident, and it is more likely to believe that on account of the date on which we established it, 9 years before the Red Cross.

It

The CHAIRMAN. Eight years after the first convention in Geneva. Mr. MCMAHON. I dare say; we are trying to project ourselves back into history. I dare say that there were very few Americans between the years 1864 and 1872 that heard very much about the Red Cross. Mr. JOHNSON. There was in 1864 the convention in Geneva, when the international treaty was adopted; at that time we were not a party to that.

Mr. MCMAHON. And in 1881 we incorporated it in the District of Columbia, and we only incorporated it for the 20 years.

There is only one other point that I would like to make, Mr. Bloom. It is that my intention is not to get overserious about this, but if you analyze the four freedoms, I think you will find they are based on the fifth amendment, and the first 10 amendments of the Constitution. Taking property without due process, raises in this case a serious question of constitutionality.

The CHAIRMAN. For public use, do not forget that.

Mr. MCMAHON. Whether this bill would be constitutional, or not, if it did not provide for compensation for taking, I am not prepared to go on record; I dare say that that would be decided, and I am not

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