that is, toilet tissues and paper towels. It has approximately 600 employees, approximately 500 of whom are members of the International Brotherhood of Paper Makers. The other 100 are supervisors, office employees, and salesmen. Our total annual pay roll is nearly $1,000,000 annually. Our total assets are over $5,000,000.

Our assessed valuation is approximately $1,000,000. Our total local taxes in Albany are approximately $30,000.

We are also interested in a pulp company at Sheet Harbor, Nova Scotia, employing approximately 125 men, who are members of the International Brotherhood of Pulp Mill and Sulphite Workers.

This company supplies the A. P. W. Paper Co. with a portion of its raw material and also supplies a substantial tonnage to England.

The present volume of business of the A. P. W. Paper Co. falls into the following classifications: It is 7 percent for direct defense, for the Army and Navy, and 53 percent for indirect defense; that is, war plants, and so forth; and 5 percent to hospitals and office buildings; and 35 percent to housewives.

We have been using continuously since 1897 the red-cross trademark on toilet paper. That mark was registered in 1911. This mark was associated with our products long before the present Red Cross Society came into being. To use it now means we had to use it before 1905; as a matter of fact, we have used the mark for over 45 years, and the public has associated our mark on our goods as A. P. W. products prior to the organization of the present Red Cross Society.

I can see no reason why Congress should interfere further than it has already gone, since the Red Cross Society, in my opinion, is adequately protected by the present acts. To now interfere as proposed you would be driving out of business many old-established concerns employing thousands of workers.

I say this for the following reasons: First, no new enterprise after 1905 could use the trade-mark. Those using it now had to have used it before 1905. Also, anyone who starts to use the red-cross trade-mark today can be adequately stopped under the present acts. Also, Congress established the policy in 1905, and the courts have given intelligent definition of it.

In view of the 1905 act, it does not seem fair for the Red Cross Society to come in now and attempt to take away the trade-mark from reputable people who have had the mark for at least 37 years. Our red-cross mark attaches to the reputation and quality of our goods and the inherent goodwill of our company.

The red-cross mark has been associated with our products for 45 years and it has not meant the Red Cross Society, nor is it our intention or desire to have our trade-mark so considered. We are not spending our money to advertise the Red Cross Society. We are spending our money to advertise the products of the A. P. W. Paper Co. We have also spent considerable money in policing our right to use the trade-mark, and our files will indicate over 70 violations. After having used the mark for two generations, I feel that we are entitled to continue its use. Today the only people that can use the mark are those that have survived two generations, for any business to have survived the past two generations means that its product must be meritorious, and no business can survive two generations unless it is meritorious.

To the best of my knowledge, there are not over seven companies in the United States using the red-cross trade-mark in interstate commerce. To my mind we are spending altogether too much time and energy on things foreign to the most important thing that faces this country today, winning the war.

A great deal has been said about the general Geneva Convention of 1929. I enlisted and served in the last war, and I am anxious to do everything I can to help win the present conflict. I do not think discussing the merits or demerits of the red-cross trade-mark will win this war. I should like to say that in my judgment Congress has observed the requirements of the Geneva Convention, but I do not think that several other signatory powers have. Hospitals and wounded men have been bombed, women and children have been ravaged, newspapers and periodicals are filled with accounts of nonobservance of the human things that the American Red Cross stands for.

I think it also important to impress upon this committee the fact that the red-cross trade-mark cannot be used for export. At least I may say that that has been the policy of the A. P. W. Paper Co., and all of this talk about bombing hospitals and things that I have heard in these hearings seems to me to be terribly foreign to the immediate situation.

Our products or no other person's products, to the best of my knowledge, can go out of this country and be used.

In conclusion I shuld like to offer what I believe to be a constructive suggestion for the committee's consideration.

Congress in 1905 forbade the further use of the red-cross mark except as to the "same class of goods." The construction placed on this phrase seems to me to be the crux of the entire discussion.

I should like to suggest that if it is thought desirable after all persons have been heard, that this phrase "same class of goods," be narrowed, and perhaps the words, "same goods" be substituted therefor, effective as the Congress may direct.

The CHAIRMAN. Would you kindly elaborate on that suggestion, please.

Mr. HOLLISTER. Well, I think that in the testimony of last Monday it was said that there were some 3,500 different products being used, or that had the right to use the mark. I may be wrong in that, I think it was complaints, or there was a large number.

Under the existing law, as I understand it, and I read from the section IV of the act of 1905, as amended June 23, 1910.

Provided, however, That no person, corporation, or association that actually used or whose assignor actually used the said emblem, sign, insignia, or words for any lawful purpose prior to January 5, 1905, shall be deemed forbidden by this act to continue the use thereof for the same purpose and for the same class of goods.

Now, if you will project your thinking into other acts, as I understand it, I am not a lawyer, so I am at a disadvantage in using laws or acts or whatnot, but I am thinking of the Patent Office.

It is possible to extend the use of the mark under certain circumstances, as I understand it, for the same class of goods, and the same class of goods could, perhaps, be a very long list of goods.

In our own case, the A. P. W. Paper Co., toilet tissues and towels are the same class of goods. If I were making stockings, for ex

ample, I might have these socks, men's socks-you might call them stockings and those rolled socks that girls wear might be called stockings, if you have the full-length hose they might be called stockings, and a lot of things like that, and where would you stop.

Now, my suggestion is that since there are only--I think not more than 10-and I could not name them if I were asked, that our firms that are using the Red Cross trade-mark in interstate commerce, perhaps I know that we would be willing to confine the use of our mark to the products on which it is now used, but under the law, not under this one but under something else, I could not extend it, but I could apply it to other goods and still be within my rights according to the advice that I have received from my trade-mark attorneys.

Mr. EBERHARTER. How many types of paper do you manufacture? Mr. HOLLISTER. We make two types of paper, toilet tissue and paper towels.

Mr. EBERHARTER. Do you not supply paper of any other sort? Mr. HOLLISTER. No.

Mr. EBERHARTER. That is all your factory makes?

Mr. HOLLISTER. That is all we make, exclusively, tissue towels. Mr. EBERHARTER. And you believe then that for instance, if a manufacturing company manufacturing rubber goods had the right to make one type of rubber goods for medicinal purposes, when you say the same class of goods, it might extend to other types of rubber goods used in connection with infirmaries and hospitals, and so forth.

Mr. HOLLISTER. Well, it might, I am not familiar with the rubbergoods industry. I could easier take Mr. Stern's case, better than I could anything else, or I could take my own case, if I may. I told you that we make tissue and towels, well now under the Patent Office classification that may be extended.

Mr. EBERHARTER. How many other articles could you make, and according to the Patent Office use this under toilet papers?

Mr. HOLLISTER. Well, I would say, I am probably not quoting the Patent Office regulations, but in our industry we have an association called the Tissue Association, which maintains a bureau known as the Label Registration Bureau of the Tissue Association, for the registration of trade-marks used on all kindred items of tissue, which we consider to be toilet papers, rolled toilet tissue, toilet seat covers, and so forth, paper towels, paper napkins, and facial tissue, lightweight waxing tissue, and wrapping tissue, and so forth.

Now, I think the difficulty has been perhaps some people have extended or widened the use of their mark beyond which perhaps this act may have intended, but it was in accordance with another act.

Mrs. BOLTON. May I ask the gentleman, you suggested that it might be advisable to restrict those few words instead of a class of goods, to the same goods. Now, that would mean, would it not, in your business, that you would be restricted definitely to toilet tissue? Mr. HOLLISTER. Yes; and paper towels.

Mrs. BOLTON. We did not have a paper towel before 1905 did we? Mr. HOLLISTER. Yes; I think that there were.

The CHAIRMAN. You did not make them at that time, did you?

Mr. HOLLISTER. Well, paper towels as they are known today were not particularly made.

Mrs. BOLTON. But you would have had to make them to come under the law, if those words were used?

Mr. HOLLISTER. I think that that is right.

Mrs. BOLTON. Thank you.

The CHAIRMAN. Are there any further questions?

Mr. Hollister, there is only one question that I have. You said that you appeared at the invitation of the chairman of the committee. I believe in your telegram to the chairman of the committee sent from Albany, you asked to be here, and to be heard.

Mr. HOLLISTER. I did, sir.

The CHAIRMAN. And in reply to your telegram the chairman of the committee extended you an invitation to be here, I just wanted to get that right for the record.

Mr. HOLLISTER. That is absolutely right.

Mr. JONKMAN. I have one question, I was rather surprised at Mr. Allen's statement that there were only seven firms and you restated it, have you made sufficient study of this matter to know approximately, and just approximately, how many firms have gone out of business. I ask that for this reason, up to this time I have been under the impression from some of the previous testimony that there are upwards of 200 firms.

The CHAIRMAN. Those are the firms that were originally registered, but they have not all renewed their trade-marks since. They have to renew them every 20 years, I believe.

Mr. JONKMAN. That probably answers the question, there were over 200 that were registered but not using it at the present time.

The CHAIRMAN. They have not renewed their license which they must do every 20 years, if they are in business and using the product, so as to continue their trade-mark license.

Are there any further questions? If not, thank you very much. STATEMENT OF HECTOR M. HOLMES, REPRESENTING THE NEW YORK MATTRESS CO., BOSTON, MASS.

The CHAIRMAN. All right, Mr. Holmes; we have a great many witnesses here and some of them have been waiting for quite a while, and we are trying to get those who want to get out of town or leave the city, so we will hear Mr. Holmes.

Mr. HOLMES. My name is Hector M. Holmes, of Boston, and I am the attorney, and have been for a number of years, for the New York Mattress Co., of Boston, makers of Red Cross mattresses since 1903.

There are a number of things to which I would like to direct my few words at the outset. I think it might be clarifying to point out that a trade-mark is a common-law right, acquired by first adoption and use.

When you are the first person to adopt and use a trade-mark you thereby acquire a common-law right, which is inviolate and will be protected by the courts, according to the common law, going away back prior to our Revolution.

The recording is a privilege granted by a sovereign, and it is merely a recording of the existing right which you have already acquired by adoption and use, and adds nothing to your original rights.

It is a nice thing to have it on the record, and the recording often saves people when they are going to adopt a trade-mark. They will look on the record and see if someone else has already adopted it, and it will save a good deal of trouble now and then.

It also gives a certain additional remedy for infringement by suit in the Federal court when there is no diversity of citizenship.

You do not have to sue in the State court, but that is a privilege the sovereign has granted and it can be withdrawn, and the sovereign can abolish the registration statute but your common law property rights still exist, and are just enforceable as though they were recorded.

It is just like your property which passes by the deed and not by the recording of the deed.

The CHAIRMAN. You must be in interstate commerce before you can do that.

Mr. HOLMES. Yes; you must be in interstate commerce. The Congress has no authority otherwise, except under the commerce clause. Mr. WASIELEWSKI. In point of the fact that the witness is an attorney and has had considerable experience, I wonder whether or not his situation is the same as we had under consideration during the prohibition era, when in my home town we had the Schlitz Brewing Co., which used the slogan, "The beer that made Milwaukee famous, and during the prohibition era they were not allowed to use the word "beer" and they had to use the word "brew," and in this case here it is apparently an attempt to forbid the use of a certain name or certain words.

Mr. HOLMES. Exactly. Of course, the poor brewers had to suspend the use of their marks during the prohibition era, and the question subsequently arose as to whether they had abandoned the use, but it was generally recognized that they had not abandoned it, but they had the intention to continue their business when and if they could. The CHAIRMAN. Do you call them the poor brewers? Mr. HOLMES. They were poor for a while, I guess.

Mr. EATON. I am greatly interested in the gentleman's very illuminating discussion, but I am just puzzled in my mind.

Suppose that you had 20 to 30 people who have adopted this Red Cross symbol in different lines of business.

Now, according to your statement, the first one of those is protected by the common law, but how about the others?

Mr. HOLMES. You are protected in the field in which you have first used it. The man who first uses it for shoes is protected in that field, and my people will be protected in the field for mattresses, but we could not quarrel with it if someone puts it on shoes.

There are different classes of goods and the public would not think the Red Cross shoe was made by the person who made mattresses, so that the law is enforced in order to protect the public from confusion as to the source.

But if someone made a Red Cross pillow we might complain, because the pillow and the mattress are sold through the same channels of trade, and the court would say there that there might be deception, or there might be deception of the public, the public thinking that the new pillow marked Red Cross emanated from the same source as the