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to prevent the misuse of the red cross and to protect it, than all others in the field combined, including the American National Red Cross.
We have a record in one case, Johnson & Johnson against Seabury & Johnson, which began in 1899 and went to 1907, which went on in the court of chancery, 5,000 pages of testimony and 2,000 pages of exhibits; and in there is testimony that does go back in Europe to a date, I believe, prior to 1864 of the use of the red cross.
That was in drug stores and pharmaceutical and medical items. I believe that I could get that for you, Congressman Vorys, if you wanted it.
I could find the page for you. Mr. VoRys. According to my knowledge of the law, if the Red Cross symbol, its commercial use, has been investigated rather carefully in your litigation, the last thing in the world that you would want to show would be a common commercial usage antedating yours, because you would then have no exclusive right to it, is that not so?
Mr. PERRY. We have met that very argument in every litigation we have ever had, that the red cross is so generally used on medical, pharmaceutical, sanitary articles that it has become generic for those purposes, and all I can say is that we have always prevailed in our litigation. We have never lost a suit on the use of the red cross, and I believe that I can quote the reasons why, from the Court of Chancery of New Jersey, if you are interested. Mr. VoRys. If it is not very long, it would be interesting. Mr. PERRY. Here is what it says:
The defendant's answer sets up a prior use of the red cross symbol, not only by it, but by the public, of so general a character as to make the symbol publici juris, so that neither of these parties have any such special right thereto as will justify this court in interfering.
By invention and care and preparation, the complainant produced and offered to the public a grade of absorbent cotton superior to any that had theretofor been offered.
This was written in 1903.
The quality of the complainant's production and the attractive form in which it was put up appealed so strongly to the public that the demand for it grew to unusual proportions and the style and character of the label acquired for it in the trade and from the public the name “Red Cross cotton.”
There is but one conclusion to be drawn from the testimony, and that is that the cotton of the complainant has for many years been known to the trade and public as Red Cross cotton, induced by the prominent display on its packages of a red cross.
The use of a red cross has been so general that its adoption by anyone except in cases where it would create confusion in the public mind and result in what the law calls unfair competition, can hardly be questioned. That is the point that I think you are bringing out.
Whatever value the red cross has as a brand for absorbent cotton was imparted by the complainant (as was said by Judge Cox in another case).
In the case under consideration the complainant by conspicuous and continuous use of, and by exclusively advertising its goods under the red-cross symbol, so impressed the public that it came to rely upon the red cross as indicating complainant's goods, and to look upon the red-cross symbol as an indicia of origin, and from this grew the habit of the consumer when desiring complainant's goods to call for "Red Cross cotton,” as in a similar manner was supplied the word “Angostura,” so that by the act of the public these words became the usual designation of the articles, which the court will protect.
That answer from that opinion is that if we have created something unique in a field and applied to it a trade-mark which is pretty generally or frequently used, but no one else in that field on a similar product has applied it, and we create through our advertising and through our presentation the public acceptance of the association of that irademark with that product, we have thereby acquired an indefeasible right and property in that trade-mark.
Mr. VoRys. I wanted to pursue this further for the moment. Now, take the American flag. Of course, it was not original in that all of the components of it, the colors, and the stars and the stripes had been used on flags back through the years, and in this case, the Halter case, the argument there was made that the flag law is void for the reason it attempts to destroy existing property rights; the flag law is class legislation and therefore null and void.
I have just been wondering whether a symbol which you state is the common property of civilization, just like a word, a common noun or something like that, cannot be used by a government and by international associations and protected against confusion?
Mr. PERRY. Well, if that is a question, Congressman Vorys, it is very difficult to answer, because I do not know precisely what the question is. First, the American colors, the American flag is an arbitrary and fanciful combination that had never been put together before. It was not something on the public domain, as the red cross was, given to us by Christianity itself. True, there are many stars in other flags, and there are stripes in other flags, and the fields are used in other flags, but no one has put together that particular flag, and I think that there is a terrific, a fundamental, difference between taking something which is already on the public domain and creating somthing fanciful, something arbitrary, and saying that this is mine and no one else shall have it.
Besides, the Halter case was decided in 1907, prior to the 1910 amendment. In other words, that case was available to the committee and to the floor, and to Congress, for consideration when it decided this issue in 1910.
I would like to say in passing, since I have mentioned that subject, that this has been before Congress on 23 separate bills, and I have here an outline of those bills, which I should like to have made a part of the record, if I may.
They start in 1887, and they come down, of course, to the present; 1887, 1888, 1890, 1892, 1893, 1894, 1897, and 1900 is the first one to succeed. The act of 1897 did pass both Houses, but failed of approval.
The act, however, as originally presented, gave to the American National Red Cross the right to license others, and I would like to introduce in a few minutes a contract that American National Red Cross entered into with us under resolution of their board of direc.tors at that time, reciting in the contract the facts with relation to trade-mark rights of Johnson & Johnson. As it came out of the Congress, and was sent to the President, all licensing, and all prohibitions were deleted, and it merely had a provision for their using the symbol. There had been many efforts made prior to that time. It is a little difficult
The CHAIRMAN. What happened to that?
Mr. PERRY. It failed of approval and it was reintroduced. Grover Cleveland was President.
It is a little bit difficult to reconstruct this situation back in those days. I have personally the utmost respect and fervid support for the Red Cross and I am sure that Mr. Hughes will state that we have always been most cooperative, and we have gone far out of our way to help, taking trips and spending a great deal of money investigating cases, even though they are not essentially matters involving us but merely the use of the emblem, or the symbol, but it is a little difficult to go back and realize that the Red Cross in 1890 and in 1900 and up to 1905 was not the same institution we are thinking of today. There were problems—you can find in articles in the New York Herald Tribune, and I have one here, a mention of the fact
The CHAIRMAN. I would not go into that, into any criticism of the Red Cross.
Mr. PERRY. This does not involve criticism, sir. It mentions that of $1,300,000 contributed for the Galveston flood, $13,000 was given to the American National Red Cross. That was the Galveston flood of 1900, and today it would be a different situation. Today I imagine the $1,300,000 would have been handled exclusively by the Red Cross.
There were other similar forms of charity that preceded it.
Today we are all very happy to know that we have such an able and splendid organization to do the entire job.
Mr. VoRys. What you just mention brings up the perplexity that faces at least some of us on the committee, that while this historical setting is extremely interesting, and it ought to be weighed and considered, we have a situation without precedent in the history of the Red Cross, or of Johnson & Johnson, or of this planet, and the question is, what is the wise thing to do now, so as not to injure, in any way, the Red Cross and to prevent insofar as possible injury to anyone else?
Mr. PERRY. I would like to say in passing that the testimony already introduced in prior hearings in former years of reasons to prohibit the symbol as a trade mark was extremely forceful; yet the American Red Cross was an effective organization in 1918 and 1919, and they had 20,000,000 members then and it is stated that today it has a membership of 17,000,000. It went through the war period, and we have read the report of General Davis in 1919 to Congress, and he seemed to be having no great difficulties in enforcement or in protecting the emblem and I cannot believe that complete prohibition is the right answer. If Johnson & Johnson thought for one instant that such prohibition would help win the war, or that giving up the symbol forever would have a material effect in winning the war, I can assure you it would not be a question for this committee.
Mr. CHIPERFIELD. If it were feasible to pass subsequent legislation, would your company object to being required to place on your product some such language as "Not approved by the American Red Cross ?”
Mr. PERRY. I would like to answer you “yes” or “no” but it is difficult because I know what you have in mind and I cannot answer it "yes" or "no." I would like to.
I think that some expression might possibly be put on, but I do not think it is necessary and I think it is objectionable. Any expression that we might put on of that character would undoubtedly be an implication of a criticism of the product by the American Red Cross or by governmental agency. I believe that there are other ways of handling it. I have been associated with the firm 8 years and I have never heard of a case of anyone suggesting that they were misled into thinking that a product of Johnson & Johnson was endorsed by or prepared by or for the American Red Cross, or had any association with it.
Mr. CHIPERFIELD. You think that there are some products that the Red Cross emblem has a tendency to deceive the public!
Mr. PERRY. I cannot answer that "yes" or "no," except to say that I think that there has been bad judgment exercised in many instances of legal users, but I am sure that upon their attention being called to such usage the legal users would discontinue and be glad to give up any such usage. I can think of our own instances, where up until the time of the war all advertising copy came before a department of which I was a member for approval, and a poster came in for a particular drive of First Aid Week which seemed to me to be unfortunate. I took that poster and went down to Mr. Hughes, and I said, "I am going down with this and see what they think of it," and Mr. Hughes said, “We do not like it, and we would think it improper.” And I said, "It will not be used.”
That poster cost us $8,500, and we offered it gratis to the American National Red Cross and even offered to have it modified in any way that they wanted to make it useful to them if it could be done, at our own expense. We have cooperated in that way, and we are only too glad to do so.
Mr. TINKHAM. Mr. Chairman, I have one question.
You seem so familiar, or thoroughly familiar with all of the legislation and the history of the Red Cross, is this the first attempt before the Congress in any way of total prohibition of the use of the symbol ?
Mr. PERRY. No, sir.
Mr. PERRY. The 1919 act, when Colonel Hartfield appeared before this committee and spoke, and he was the only witness, I believe, and it was a total prohibition, and there were earlier acts of total prohibition. When Colonel Hartfield testified—I apologize—it was before the Patents Committee and not before the Foreign Affairs Committee.
Mr. TINKHAM. But I had said "before the Congress."
The CHAIRMAN. I wanted to correct that. He said “this committee” and I wanted to get the record straight.
Mr. PERRY. The embarrassments and dangers were adverted to, in that testimony, but no incident cited, and Congress did not find that there were any presented to them, and the bill was not reported, it just lay there in the committee.
Mr. TINKHAM. Now, was there any other occasion except 1919?
Mr. PERRY. Yes, sir, I believe that there were occasions back around 1905 and 1906; the original bill of 1904 which became law with amendment in 1905 did have total prohibition in one form or another. There were many amendments suggested.
Mr. TINKHAM. I have a memorandum that this issue in some form, as total prohibition in some form, was raised in 1895, 1898, 1900, 1905, 1910, and also in 1919.
Mr. PERRY. I believe that that is true, Congressman Tinkham, and also in 1890, 1892, 1893, 1894, 1897, and 1900.
Mr. TINKHAM. And each time, of course, it was rejected.
CATALOG OF ALL BILLS INTRODUCED IN CONGRESS FOR THE INCORPORATION OF, OR
TO PROTECT THE INSIGNIA AND NAME OF, THE RED CROSS 1. January 31, 1887. H. R. 11001. “A bill to incorporate the American Committee of the Red Cross Association.” (No mention of insignia. No action taken on the bill.)
2. January 9, 1888. H. R. 3698. "A bill to incorporate the American Committee of the Red Cross Association.” (No mention of insignia. No action taken on the bill.)
3. July 23, 1890. S. 4262. “A bill to incorporate the American National Association of the Red Cross." (Would prohibit use of insignia completely except authorized agents of the U. S. Government, the Red Cross, local and foreign, and the Masonic order. No action taken on the bill.)
4. July 28, 1890. H. R. 11566. “A bill to incorporate the American National Association of the Red Cross.” (Identical with S. 4264; no action taken on the bill.)
5. June 17, 1892. H. R. 9266. "A bill to protect the insignia and name of the Red Cross as prescribed by the Treaty of Geneva of 1864, and to incorporate the American National Association of the Red Cross, formed to carry out the provisions of said treaty.” (H. Rept. No. 1790; would prohibit all use of insignia except by authorized agents of the U. S. Government, the Red Cross, local and foreign. Committee did not amend section 4. The House did not act on the bill.)
6. July 11, 1892. S. 3404. “To protect the insignia and name of the Red Cross, and for other purposes.” (Would prohibit use of insignia except by authorized agents of the U. S. Government, Red Cross, local and foreign, and the Masonic order. No action taken by committee.)
7. September 6, 1893. H, R. 49. “A bill to protect the insignia and name of the Red Cross Association.” (Would prohibit all use of insignia except by authorized U. S. Government agents, the Red Cross, local and foreign. No action taken on the bill.)
8. February 3, 1894. H. R. 5580. "To protect the insignia and name of the Red Cross Association." (As introduced, prohibited all use of insignia except by officers and agents of the United States, the Red Cross, local and foreign, the Knights Templar, Masons, and similar secret organizations who adopted such use prior to August 22, 1864, and the Sixth Corps of the Army. Commercial users were given 1 year to stop use unless they should receive permission from the American National Red Cross to continue such commercial use, in which case the charge was to be not less than $500 paid to the Red Cross. As amended in Senate Foreign Relations Committee, use was forbidden only “for the purpose of collecting, soliciting, or receiving money or material,” or by those who "do, or attempt to do, similar work to the American National Red Cross without permission
Thus amended, the bill passed Senate and House, but did not reach the President in time for signature. (H. Rept. 477.)
9. May 6, 1897. S. 1913. “A bill to protect the insignia and name of the Red Cross." (Same protection for insignia given in amended H. R. 5580. Passed Senate, but objected to in House on two occasions, and did not pass. H. Rept. 1135.)
10. February 5, 1900. S. 2931. “An Act to incorporate the American National Red Cross." (As introduced, this bill contained same section 4 as did S. 1913 (1897), but Senate Committee on Foreign Relations amended to forbid any “person or organization to use the said symbol or name of the American National Red Cross, to do or attempt to do similar work to the American National Red Cross, without permission *
This did not attack commercial users. The House passed the bill as amended in the Senate and it was approved by the President Júne 6, 1900, to become the first Federal statute on the subject of Red Cross incorporation and protection of its insignia against fraudulent use in similar work. S. Rept. 391 ; H. Rept. 758.)
11. February 5, 1900. H. R. 8061. "A bill to incorporate the American National Red Cross, and for other purposes.” (Section 4, as introduced. was the same as that in S. 2931, which was taken up in lieu. No action on the House bill.)