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Mr. SCHWAB. We have not used it on pillows, we do not manufacture them.

Mr. EBERHARTER. Certainly if you have it for beds and for couches, you certainly would have it for pillows.

Mr. SCHWAB. We do not use it on beds.

Mr. EBERHARTER. You claim that you would have the right to use it on pillows.

Mr. SCHWAB. I think that we would, if we made them, that is just my own opinion, I would have to refer to our attorney, after all I am not a lawyer.

Mr. EBERHARTER. You claim that "mattress" means beds and pillows.

Mr. SCHWAB. We claim this, that we were registered in the United States Patent Office, actually under the classification of furniture, and I think that you will find that that registration is in that form. but we have never extended it to furniture.

As a matter of fact, we make chairs, but we have never extended the red-cross trademark to chairs. We make upholstery units for furniture manufacturers, but we have never applied the red-cross label to that, and we have only used it on items that are specifically manufactured for sleep.

Mr. EBERHARTER. But you claim that you have the right to extend it to items that you have not used it on.

Mr. SCHWAB. I claim that we have, but we have had the right since 1905, and we have not used it, so there is no reason to assume that we will.

Mr. EBERHARTER. You would not be willing, Mr. Schwab, to restrict the use of the red-cross emblem to mattresses alone, as is called for by that exhibit you presented to us.

Mr. SCHWAB. Mr. Eberharter, I do not think that that would be necessary, and neither do I think it would be fair.

The bedding industry has progressed apace, just like all kinds of industry, and let me give you an idea of what I mean. Back in 1905 about the only item of bedding of any particular importance at all were mattresses, even bedsprings outside of box springs, which by the way the label was used on at that time, was not a very important item.

Those have been greatly improved. Mattresses up until the early part of 1920 were all felt mattresses, and since that time the mattresses have been improved, and people hardly want anything except an inner-spring mattress.

Now, that is an improvement to which we think that we are entitled to use the value of the advertising and good will that we have built up with the Red Cross brand.

Now, even more recently as our cities have grown up and our living quarters have become more restricted, and it is particularly important now in that 500,000 defense houses are being put up and it has been suggested by the Defense Housing Committee that sofa beds, and studio couches would be used in order to utilize the restricted space in those houses, we feel that we have a perfect right, both legally and morally to use our Red Cross brand in manufacturing those items.

If a person buys a sofa bed, which is an item which opens up, and makes a bed at night, they use it as and in lieu of a mattress, and it

performs exactly the same purpose too, and to all intents and purposes it is the same. We feel that it would be splitting hairs, and be very unfair to us to consent to any such limitation as that.

Mr. EBERHARTER. Your view is exactly the opposite of the view taken by the concern up North, which manufactures mattresses, and has the right to use the Red Cross label on them, because the testimony of the gentleman representing that company was that they were willing to confine it to mattresses only, and not to extend it to studio couches, either in advertising or any other respect.

Mr. SCHWAB. Well, that was Mr. Holmes' firm, I cannot speak for him, but he makes a very much shorter and more restricted line of merchandise than we do, so he is not really giving up very much, and I think that you will remember that the label that he exhibited which he is now using on studio couches read "Equipped with Red Cross Mattresses" so it is simply a question of wording that was involved there, rather than actually giving up the usage of the Red Cress trade-mark on the studio couch.

The CHAIRMAN. Shall I read Mr. Holmes' testimony?

In 1936 we put out a studio couch, and on the pillow of the couch, I think it was, we put a label stating that this studio couch was equipped with Red Cross inner-spring mattress.

That is a truthful statement, I think, and we had occasion to send one of those labels to Mr. Hughes, and he offered no objection to it in 1936.

Mr. EBERHARTER. That is a different company.

The CHAIRMAN. You are the company that Mr. Holmes stated that entered into an agreement that you are to take the southern part of the country and he would take the northern part.

Mr. SCHWAB. That is correct.

The CHAIRMAN. Now, of course, your trade-mark read, is just for mattresses.

Now, had you used any of these other products, notwithstanding the fact that this only calls for mattresses, but had you used prior to 1905 any of these other products that you are making today?

Mr. SCHWAB. We were making items which would come clearly within the same classification and category.

The CHAIRMAN. But had you used it, and with the label or selling it as the Red Cross pillow, or couches, or anything else outside of mattresses?

Mr. SCHWAB. No, sir; we did not.

The CHAIRMAN. Well then, under the law, Mr. Schwab, how do expect to do that?

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Mr. SCHWAB. Well, we felt, Mr. Bloom, and we still feel that we were operating clearly within both our legal and our moral rights, if we were not it was easy enough to correct it under the existing law. The CHAIRMAN. But you know what the existing law is, do you not? Mr. SCHWAB. Certainly.

The CHAIRMAN. Does not it say that which has been used prior to 1905?

Mr. SCHWAB. The law says for the same purpose and for the same class of goods, and we feel that these are definitely and specifically the same class of goods, and we feel that there can be no question about it. The CHAIRMAN. Have you ever taken this up with Mr. Hughes?

Mr. SCHWAB. I think Mr. Hughes had some correspondence with our attorneys about it; it was a legal matter.

The CHAIRMAN. What conclusion have you come to on that?

Mr. SCHWAB. I do not think that there was any conclusion. I might refer that to Mr. Rogers, whether any conclusion was arrived at at all. The CHAIRMAN. Can you give any light on this subject, Mr. Rogers; do you wish to testify?

Mr. ROGERS. I would be very glad to.

The CHAIRMAN. Give your name and address to the reporter.

STATEMENT OF ERNEST P. ROGERS, COUNSEL TO THE SOUTHERN SPRING BED CO., OF ATLANTA, GA.

Mr. ROGERS. I am Ernest P. Rogers; I am an attorney from Atlanta, Ga., a member of the firm, one of the younger members of the firm, that represents the Southern Spring Bed Co. in Atlanta. This matter was brought to our attention, I believe, in 1933, when Mr. Hughes, of the National Red Cross, wrote to the Southern Spring Bed Co. and protested against their use of the red-cross trade-mark in connection with the term "bedding." We went into it at some length at that time and we studied the act, and the act specifically provided that those who had used the mark, the redcross mark, prior to 1905 would not be prohibited from its use for the same purpose and for the same class of goods, and we had to attribute some meaning to the term "for the same class of goods."

Now, our firm has done a considerable amount of trade-mark work; we were general counsel for the Coca-Cola Co. from an early date, and carried on their litigation throughout the world for some twentyfive or thirty-odd years, and we knew what the term "the same class of goods" meant in the law of trade-marks.

We found that the Patent Office itself, under an act of Congress of 1906 authorizing and directing the Commissioner of Patents to set up a classification for goods, had determined this classification which our client's product fit as furniture and upholstery.

We discussed that with the Southern Spring Bed Co., and they felt that irrespective of that they would not like to go that far, and they had not done it, as they had never extended their mark to anything other than sleeping items; that they would not care, in the face of Mr. Hughes' protest, to take advantage of such a classification. We told them in our opinion that they were being very fair, and that they were well within their legal rights, and were even bending backward in deference to the red cross and Mr. Hughes' protest to continue their restriction to bedding.

The CHAIRMAN. Now, will you define bedding, please?

Mr. EBERHARTFR. First may we have what classification you have there? Now, on the exhibit that Mr. Schwab showed us, it said mattresses. Now, if the classification is differently registered, we would like to know that at the beginning.

Mr. ROGERS. They had the registration in the Patent Office about which Mr. Holmes spoke yesterday. The application for that was filed June 3, 1905, and the registration was granted in 1906, on June 5, and this is that registration. You will find that the class of merchandise to which the trade-mark is appropriated is furniture, and the

particular description of goods comprised in said class upon which said trade-mark is used is mattresses.

Now, the class of goods in that registration was furniture. That was the classification set up in the Patent Office before the act of 1906, and after the Trade-Mark Act of 1906 the classification which was specified was furniture and upholstery.

Now, when the bedding industry met and established a code under the Old National Industrial Recovery Act, they defined under the code, which was formulated by the bedding manufacturing industry, with the cooperation and approval of the body set up to administer the National Industrial Recovery Act, the term bedding as including "mattresses, pillows, box springs, studio couches, metal beds, metal and wood cribs, cots, and metal bedsprings and gliders."

I am reading from the bedding manufacturers code established under the old National Industrial Recovery Act.

The CHAIRMAN. That is the way the trade defined it.

Mr. ROGERS. And it was approved by Gen. Hugh S. Johnson, the Administrator of that act on January 23, 1934.

The CHAIRMAN. Could you answer this question for the benefit of the committee, please: The class of merchandise to which the trademark is appropriated is furniture, and the particular description of goods comprised in such class upon which said trade-mark is used is mattresses.

Now, I think that you had better explain that away if you can. Mr. ROGERS. I think the language is quite clear, it says the class of goods is furniture, and it says the specific item within that class is mattresses.

Mr. EATON. It leaves some leeway to introduce other items.

Mr. ROGERS. Yes, within the class.

Now, the act of 1905 as amended said that it might be used, or there was no prohibition against its use for the same purpose and for the same class of goods.

Now, if we were to give that terminology, or that verbage any meaning at all we had to consider that.

The CHAIRMAN. I think it is rather confusing when you say furniture, and then the class of goods is mattresses, that you can use the trade-mark on.

Mr. ROGERS. I do not think so, Mr. Bloom.

The CHAIRMAN. I am willing to be convinced, I have an open mind." Mr. ROGERS. I was trying to think of a happy illustration.

The CHAIRMAN. I do not care if it was so happy, as long as it was an illustration.

Mr. ROGERS. Take hardware, for example, sir, it would be a little difficult to tell just offhand, or define what articles of manufacture could be fairly said to come within the class "hardware."

Mr. EBERHARTER. In that connection, if a person had a trade-mark for a particular wrench, and he went to register and he had the trademark for that particular wrench, and he got permission or he got that registered, you mean to say that he would nave the right to extend that trade-mark or use it on every item of hardware? Mr. ROGERS. Every item of the same class, sir.

Mr. EBERHARTER. But every item of hardware?
Mr. ROGERS. Yes, sir.

Mr. EBERHARTER. When this registration was requested from this exhibit here, which reads:

Southern Spring Bed Co. of Atlanta, Ga., deposit in this Office for registration a label of which the following is the title: "Red Cross" (for mattresses).

So it is your contention that that gives you the privilege of coming in the classification to manufacture anything which could be called furniture.

Mr. ROGERS. I think that is a very liberal and broad construction of it. Yes, sir.

Mr. EBERHARTER. I would like to ask Mr. Schwab a question.

You feel that your company would want to insist on those rights, is that right?

Mr. SCHWAB. No, sir. We have not insisted on them. We have used it in a very restricted sense.

The CHAIRMAN. What do you ask for now? You ask for mattresses and then what else?

Mr. SCHWAB. We think that we would like to continue to use it on the type of items on which we have been using it, which is strictly bedding. Strictly items constructed for sleeping purposes.

The CHAIRMAN. Would you be kind enough to tell me what you call a sleeping bed?

Mr. SCHWAB. The only items on which we are using the red cross label are mattresses, bed springs, sofa beds, and studio couches.

The CHAIRMAN. Well, I think that you have some cause to think that you are right, but I think when you say "furniture," of course you have seen the signs on all of these furniture stores "Furniture and Bedding," and they advertise furniture and bedding.

Now, of course they are two distinctive classes there, and now if you get into bedding and stick to bedding and leave the furniture out of it, you might get somewhere, but I think the word "furniture" is rather broad. I think it is too far-reaching.

Mr. SCHWAB. I tried to preface my statement and make it perfectly clear that we have never used it for anything else than bedding, in the very restricted sense, and we never have any intention of ever using it for anything else.

We have made a great many other products, but we have never used the red cross label on them, and never intend to do so.

Mr. WASIELEWSKI. Mr. Chairman, I might summarize what has been said here by indicating that possibly Mr. Schwab's company is justified in extending the use of the trade-mark to the studio couches and the other items that he has mentioned, because they clearly come in the classification of furniture and are used for the purpose of sleeping, so I suppose in that way they justify their stand."

The CHAIRMAN. It would if that did not say or if that did not state the particular use for which the red cross label is to be used for is mattresses. That is the thing that I cannot understand. I believe that that is what it says there.

Mr. ROGERS. It does, sir.

The CHAIRMAN. That is the thing that Judge Eberharter and I are evidently not able to get the true definition of.

I think, Mr. Schwab, it is rather late, and we are going to have other hearings the week after next, and I wish that you would kindly

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