Mr. HENDERSON. In the application they have to make oath setting forth the time since which they have used the mark continuously in business.

Mr. DENBY. Yes; but your provision is based upon the idea that they do not have to apply?

Mr. HENDERSON. They do not have to apply.

Mr. GARNER. He seeks to amend that by the amendment requiring them to file an affidavit with the Red Cross that they have used that prior to 1905.

Mr. DENBY. Yes; I am familiar with that amendment.

Miss BOARDMAN. In the past we have found that since the act of 1905 there have been a number of trade-marks issued allowing the use of the red cross, because anybody can go to the Patent Office and ask that their trade-mark be registered, making affidavit of the use of the red cross prior to 1905, and no proof would be required. We would know nothing of this, and it would be issued on their affidavit that it had been used prior to 1905. No proofs were required. When we inquired why those trade-marks had been issued, the Patent Office replied it had received affidavits from the parties that the use had been prior to 1905.

Mr. HENDERSON. I think Miss Boardman is correct about that, because in making application for a registration of a mark, say a red cross, or in fact other marks, the applicant for the registration is required under the rules and practice of the Patent Office to accompany that application with a sworn declaration setting forth the date when the mark was first used, and since which date this mark has been continuously used for which registration is sought.

Mr. DENBY. Then, it would all come around, in your idea, to this point, that we cannot enjoin them from using these trade-marks-that is, you can pass legislation of this kind, but so long as the door to evasion is so wide open, the legislation becomes inoperative, practically, if we pass as broad an amendment as is desired?

Mr. HENDERSON. As it is framed, we have no doubt whatever that it is unconstitutional, because it absolutely seeks to, and so far as legislation can, it does, take away from the owners of trade-marks a vested property right. For instance, you take the case of Johnson & Johnson, who have used this symbol for twenty-five year and more in their business.

Mr. DENBY. Yes.

Mr. HENDERSON. Now, that is a vested property right.

Mr. DENBY. Pardon me, I would like to ask Miss Boardman whether I am correct in my views that the theory of the Red Cross is that they do not wish to disturb any vested rights.

Miss BOARDMAN. We do not want to disturb those rights, and we. suggested that such trade-marks be called to their attention and the class of goods be specified. We were perfectly willing to have that added. But we find that the law protects all sorts of emblems of fraternal orders, and that trade-marks are not allowed which use the coats of arms of States. Our own national flag cannot be used, and state flags cannot be used. There is an absolutely prohibitory provision in the patent law against such use. We feel that the Red Cross should have the same protection that the fraternal orders have. It is in a way a fraternal order. We think the international use of

the emblem should give it the same protection that fraternal orders, state coats of arms, and the national flag have received from the Patent Office.

Mr. DENBY. And we want to give that protection so far as it can possibly be done. Now, all I want to know it whether the Red Cross recognizes that desire not to attempt to interfere with vested rights in the use of the symbol?

Miss BOARDMAN. Yes.

Mr. DENBY. Which vested rights had accrued before the Red Cross came into existence. Is that it? Am I to understand that you do not wish to interfere with any vested rights which accrued prior to January 5, 1905.

Miss BOARDMAN. We do not want to interfere with such rights, and we could not interfere with them, but at the same time we want to have a provision in the law so that people cannot continue to use the red cross, particularly as it is used now. For instance, it is used on automobiles, it is used on the productions of pharmacists, and it is used for any number of advertising purposes. We have Red Cross pharmacies, Red Cross bakeries, Red Cross chicken food, Red Cross cow remedies, Red Cross shoes, and all sorts of things. It has become a common symbol, and this has injured the use for which it was selected by treaty. There was a man shot in San Francisco at the time of the disaster because he flew a Red Cross flag on his automobile when he had no right to do it. There was nothing to prevent his doing it. This man was crossing the dead line, and in order to get across the line he was flying this flag, which he had no authority to fly. He was shot by one of the National Guard and killed. This created a great deal of excitement at the time because an emblem was fired on which was recognized in warfare as a protection. Anybody who wanted to cross the line at that time made a little red cross, put it on his arm, and was allowed to cross. This created a great deal of confusion. Of course in time of war it is essential for its purpose of protection, and if it is misused it loses all its significance.

I have here a reprint from an article by Mr. Renault, who is an authority on international law, and he speaks of the abuse of the signal leading up to the absolute neutralization of its powers. He says that if soldiers see it used on all sorts and kinds of articles and also on all sorts and kinds of places, it conveys no idea of protection as intended. When it is put upon beer shops, and wines have been labeled with it, then how can it protect hospital supplies? So far as Johnson & Johnson and their trade-mark are concerned, their supplies are of a kind that we feel is least objectionable in the use of the emblem, because they are in the nature of hospital supplies; but when the emblem is used on all kinds of things, it loses its power to protect. We even have Red Cross false teeth, as I noticed in one advertisement. Mr. DENBY. There are three separate suggestions here before the committee. One is contained in the bill, one is the amendment suggested to be incorporated in this bill, and the other is Johnson & Johnson's amendment, which merely adds to this amendment those few words, to cover the substances for which the mark has been used by them.

Now, I want to see if we have got it right in the bill. The amendment in the bill states that those persons who are the owners of trade-marks heretofore registered shall be exempt. "Heretofore

registered" means prior to the passage of this act, no matter when they made their application, and the provision in section 1 is that "owners of trade-marks for the registration of which applications were filed prior to January fifth, nineteen hundred and five, in the United States Patent Office," and for which no registration has yet been issued, shall be exempt from the provisions of this act. Then we come to add to that the suggestion made by Johnson & Johnson. Now, there is the third suggestion, which is more drastic and which comes from another firm of manufacturers of chemical supplies, Seabury & Johnson. Seabury & Johnson wish to go further than this amendment goes and to provide that anybody who had the legal right to use the red cross, and had such legal right at any time prior to the passage of this bill under consideration, shall be exempt from the prohibition in the bill.

Mr. GARNER. That brings it down from 1905 to the present date. Mr. DENBY. They contend that in 1905 there was a prohibition against all using it subsequent to that date who had not the right prior to that date, and that bringing it down to this time makes no difference. They contend that they have used the red cross for many years, and they rely on the common-law right to use it. They say, as Johnson & Johnson say, that the use is concrete evidence of such right, and they contend that they can come into court at any time and set aside any law seeking to prohibit its use as an invasion of a common-law right by statute.

Miss BOARDMAN. They filed their application for registration in April 1905, and this bill prohibiting the further use of the red cross became active in February 1905. They wish an amendment to include their application. Our present form was intended to include them, as we thought they had filed their application prior to February 1905, but it seems they had not; that they did not file it until April 1905, and the bill went into effect February 1, 1905.

Mr. DENBY. This proviso reads:

Provided, however, That owners of trade-marks heretofore registered in the United States Patent Office in pursuance of the trade-mark laws of the United States and owners of trade-marks lawfully entitled

Those words make all the difference in the world—

prior to the fifth of January, nineteen hundred and five, to use the sign of the Red Cross as trade-marks and for the registration of which Red Cross trade-mark applications were filed prior to the passage of this act in the United States Patent Office.

Mr. GARNER. Mr. Denby, if they are correct in assuming that it would be unconstitutional to pass an act taking away from them their property rights, we would really have to include that in there. If they are correct, even this language is too narrow, because this language says: "Those who are lawfully entitled and have applied for registration." It says "those lawfully entitled." You would have to stop right there, according to their contention. Johnson & Johnson want it just broad enough to take them in, and Seabury & Johnson want it still broader, because they did not apply prior to January 5, 1905, but did apply after. If they are correct, this ought to read this

way:

And owners of trade-marks lawfully entitled prior to January fifth, nineteen hundred and five, to use the Red Cross trade-mark shall not be forbidden by this act.

General DAVIS. That would be reenacting the present law.

Mr. DENBY. Yes; that would be reenacting the present law. It would be going only far enough to protect these firms. Each of these firms wants to go only far enough to protect it; but it is to be considered how far we can go legally.

Miss BOARDMAN. The present law has no proviso except as to the application for the trade-mark and the registration for the trademark. There is the proviso that people shall not represent themselves as agents of the Red Cross, but there is no proviso against anybody using it if they do not claim they are agents of the Red Cross.

Mr. DENBY. This makes it broader. If we said that those lawfully entitled before the 5th of January 1905, to use the trade-mark shall be exempt from the prohibition, that would be going further than that went, because the language of this act is broader. In other places it is broader than the old law and very much more beneficial for the operations of the Red Cross, and even that would be desirable.

Miss BOARDMAN. Even that would be desirable. Many persons use the emblem, though they may not claim to be agents of the Red Cross. Mr. GARNER. What you want is to prevent the use of the red cross in these ways?

Miss BOARDMAN. Just as much as we possibly can.

Mr. DENBY. The present law, in section 4, provides:

Nor shall it be lawful for any person or corporation, other than the Red Cross of America, not now lawfully entitled to use the sign of the Red Cross, hereafter to use such sign or any insignia colored in imitation thereof for the purposes of trade or as an advertisement to induce the sale of any article whatsoever.

This act goes further and says, "not only for the purposes of trade or to induce the sale of an article, but for any other purpose." In other words, you cannot use the red cross to run through the dead line.

Mr. HENDERSON. The other applied to the application of the mark to goods or merchandise, but this is more comprehensive.

Mr. DENBY. Assuming, for the sake of argument, that the two firms are correct in their theory that we cannot deprive anyone of the use of the red cross who had a vested right, a legal right, to use it prior to the passage of the act of January 5,.1905-assuming that to be true, what will be the effect of passing this act with that proviso?

Miss BOARDMAN. And without a proviso for registration? By the patent law this protection is afforded to the coats of arms of States, all fraternal orders, Masonic orders, and state flags.

Mr. DENBY. And patriotic bodies.

Miss BOARDMAN. They have that protection in the patent law. Mr. DENBY. The badge of the Spanish war veterans is forbidden to be duplicated by any other society; but if there had been a society that owned the right to that cross as it stands there, the Spanish war people could not have taken it from them, either with or without registration; but they would not attempt to prevent anybody else from using it who had the right to use it prior to the time they adopted it.

Miss BOARDMAN. If all this had been originally suggested in 1882, as it should have been, this question would not have arisen, because

Johnson & Johnson, I think, used it only in 1884, whereas we first signed the treaty in 1882.

Mr. DENBY. Yes.

Miss BOARDMAN. The original treaty was signed first in 1864, but as the United States did not sign it until 1882 it was not used by the society in this country until 1882. Then protection was not sought, as it should have been. What we want now is to find some way by which we may obtain proper credentials from the people who use the red cross as a trade-mark that they had the right before 1905. We are constantly receiving from Red Cross members protests against the use of the red-cross symbol on all sorts of things.

Mr. HENDERSON. May I interrupt you a moment?

Miss BOARDMAN. Certainly.

Mr. HENDERSON. Would not this tend to get the information that you desire to have, the suggested amendment offered here, that the parties shall notify your association within, say, a certain time?

Mr. DENBY. As a matter of law that would not make any difference. Mr. HENDERSON. No; I know as a matter of law it would not; but it would get that much in there, and it would tend to give the Red Cross Society the information which they want.

Mr. DENBY. In a sense that would be substituting the Red Cross for the Patent Office, which we could not do. That would be making these concerns look to the Red Cross for authority.

Mr. HENDERSON. It would tend to give the Red Cross information upon that, but it would not be absolutely enforceable, as I understand. Mr. LowDEN. Who actually used the red cross first?

Miss BOARDMAN. The red cross in the form of which we are speaking, because we do not wish to curtail its use in the form of the St. Andrew's cross and the Maltese cross-that is, the five squares, with the reversed colors of the Swiss flag, adopted out of compliment to Switzerland-may have been used by the Templars back in the crusading times. It was the simplest form they could use of the cross. But I think the fact is that its use, as it is used to-day by Johnson & Johnson and Seabury & Johnson, has come from a misapprehension. I have always had that feeling. The French word for the medical service of the army is "sanitaire," and the German word is "sanitats." Now, we attach to the word "sanitary" an entirely different idea. It typifies a certain purity of the article, and I think the use of the red cross in this country for many articles has arisen because it gives the impression that it is a very pure article.

Mr. HENDERSON. It has the suggestion of purity.

Miss BOARDMAN. Yes; which was never the original intention.

Mr. LOWDEN. I have not examined this subject, but I suppose that no society like the Red Cross has any common-law right to any mark in the absence of special legislation, has it?

Mr. DENBY. It has the right when it assumes to use the mark, and thereby acquires a right.

Mr. LOWDEN. Then suppose the Red Cross Society first used in this country this particular device or symbol?

Mr. DENBY. But it rested upon its rights, and it would be very hard to prove. And that is the difficulty in the whole thing. They come in and say Johnson & Johnson began to use it in 1884. The Red Cross was not incorporated until

Mr. LOWDEN. Miss Boardman says they began to use it in 1882.