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By the time they get through we will be out of business, and so will some of the smaller silk converters.

In conclusion, let me say that the bill would make for monopoly and confusion, and do some people good and most people lots of harm. I think registering designs with the National Federation of Textiles, Inc., gives the converter ample protection from piracy. I feel that that bill should be defeated.

Very truly yours,

HERMAN BLANC.

WILLYS-OVERLAND MOTORS, INC.,
Toledo 1, Ohio, February 20, 1948.

Re H. R. 2860, Registration of designs for textile fabrics.

Hon. EARL R. LEWIS,

House Office Building, Washington, D. C.

DEAR SIR: Concerning the above it seems to me that the bill is highly objectionable in several respects. Furthermore, attempts to enact textile design copyright bills have been made at various times in the past several years and all have been unsuccessful. It is hoped that this bill will follow a similar course.

The bill purports to provide for registration of "novel" textile designs and at the same time requires the Register of Copyrights to make a complete search for novelty and, within 7 days of the date of the application, issue a certificate of registration for the design. Obviously this would be impossible as a thorough search through all the heretofore known designs could not be accomplished in 7 days and issue the certificate of registration having a prima facie blessing of validity. Then to add to the confusion, on questions of infringement the bill requires that a presumption of infringement shall be held to arise from a visual similarity to the registered textile design. By this provision every manufacturer of textiles would be open to substantial blackmail premised solely upon an opinion of similarity of his design to that of a registered design as he is subjected to a "presumption of infringement" and to the issuance at any time of a temporary injunction. The natural result of a bill of this nature is the unjust imposition upon an innocent manufacturer. The bill purports to exclude "distributors at retail" from the operation of the various enumerated acts constituting violations of the proposed law. No definition is given in the bill as to who may be considered a distributor at retail. For example, an automobile manufacturer embodies upholstering textiles in its vehicles which it subsequently sells but there is nothing in the proposed law by which a person, firm, or corporation could determine whether they come within the exception.

Further in connection with the question of novelty of a design, there is no provision whatever set up for the classification and compilation of prior art. Hence, the "novelty" search made by the Register of Copyrights upon the filing of an application and the burden placed upon an alleged infringer to search and investigate the prior art would not only be a voluminous undertaking but tremendously expensive.

The bill in addition to the above enumerated points has many other shortcomings which in the writer's opinion renders it wholly unsuitable and unworkable, even if such bill represented a conscientious attempt to afford protection for the creators of textile designs. It is the writer's request that every effort be made to prevent the enactment of this bill.

Yery truly yours,

WILLYS-OVERLAND MOTORS, INC.,

H. O. ERNSBERGER, Patent Counsel.

PACKARD MOTOR CAR COMPANY, Detroit 32, Mich., February 43, 1948.

Re H. R. 2860, design copyright for textile fabrics.

Hon. EARL C. MICHENER,

House Office Building, Washington, D. C.

DEAR MR. MICHENER: You represent a State wherein automobiles are manufactured. The Packard Co. is a manufacturer of automobiles and we are much interested in not having anything corresponding to H. R. 2860 put on the statute books.

I understand that this bill has been referred back to the subcommittee and that hearings will be held next week.

When this matter was up last spring I wrote the chairman of the subcommittee, Hon. Earl R. Lewis, in accordance with the enclosed copy. I am writing you today to emphasize one or two of the more important and serious objections to the bill.

The bill professes to require novelty in the design before registration can be had and then proceeds to make a farce of that requirement by making no provision whatever for classification of prior art and making no provision whatever for the cost of searching that art even if it were available. That art would be available neither to the examiners in the Copyright Office nor to the public for examination. It means therefore that the Copyright Office would have to register practically everything that was filed and its registrations would merely be used as blackmail against perfectly innocent manufacturers or retailers and much of this blackmail would be successful because of the lack of classified material which to anticipate the registrations.

The bill provides for $10 per application to cover the cost of a search that can't be made because the art is not classified whereas the minimum Government fees for patent applications amount to $60 where the art is thoroughly classified, and I understand that the Department of Commerce is asking for an increase of these fees to $100 per patent because the present fees are inadequate.

Who is going to pay the cost of searching for prior art in these copyright applications, the cost above $10? Of course the taxpayer is going to pay it unless the Copyright Office finds that it can make no search, which is probably what it will do, thereby making a farce of the novel requirement.

An even more ridiculous requirement of the bill and one which affirms the charge that "novelty" means nothing in the bill, is the requirement in section 4 that the Register of Copyrights shall make a search and issue a certificate in 7 days after application. The Patent Office with its elaborate facilities for classification and search of prior art is from 18 months to 2 years behind in its actions on new applications and even with its increased force it is unable to materially reduce the backlog of applications. What sort of a force would the Register of Copyrights require to act upon applications in 7 days? It would be either a large additional bureau to make trouble for manufacturers and retailers or it would be a registration bureau without search for novelty which will also harass manufacturers and distributors of manufactured goods.

In my letter to Congressman Lewis I pointed out how automobile manufacture might be entirely stalled because of a false claim for copyright protection of a design for upholstery, under the remedies section of the bill. Michigan is a manufacturing State and it does not seem to us that our Representatives should allow an attack upon its manufacturers and distributors such as this bill is designed to do. The bill should not be allowed to emerge from either the subcommittee or the Judiciary Committee as a whole.

Very truly yours,

PACKARD MOTOR CAR CO.,
MILTON TIBBETTS,

Vice President.

CROSLEY MOTORS, INC.,
Cincinnati 14, Ohio, February 24, 1948.

Re H. R. 2860, a bill to provide for protection for designs for textile fabrics.
JUDICIARY COMMITTEE,

House of Representatives, Washington, D. C.

GENTLEMEN: We wish, as a member of the automobile indutsry, to register our complaint against the adoption of the above bill. We oppose such a design copyright bill for the following reasons:

1. The design patent statutes are adequate to protect any design in which there is invention. The requirements of these patent statutes should not be evaded by any copyright act which offers less protection to the public, since it does not even require invention in the textile design. The public should not be subjected to such an easily acquired copyright monopoly as is permitted by this bill.

2. The type of design that could be registered under this bill need not even be a new design since a "novel textile design" is defined as one which "has never before, anywhere in the world, been represented pictorially as a textile design

or been applied to or incorporated in any textile." In other words a design from anywhere in the history of art or industry suddenly becomes a novel design if it is applied to a textile and nobody else can use it.

3. A 7-day search to determine whether the textile design is original, novel, and not substantially like a prior textile design, such as is provided in section 4 of the bill, is an obvious impossibility.

4. This bill, though restricted to textiles, is simply a foot in the door and the next thing we may anticipate will be a copyright monopoly covering designs on articles or objects such as automobile ornaments. Automobile upholstery would fall under this bill.

The confusion which would result from these monopolies not based on any invention, new and distinct to the industrial world, would be immense and would hamper trade and commerce.

There are other objections to the bill. For example, it is not a true copyright law since it requires filing of an application before the textile design is published; nor is it a true patent law since it does not require invention. We feel that the principal objection is that this bill constitutes an undesirable mutilation of the patent statutes and offers an unearned monopoly not based on invention. Yours very truly,

Congressman EARL R. LEWIS,

CROSLEY MOTORS, INC.,
ROBERT L. PETERS,

Legal Department.

NATIONAL ASSOCIATION OF MANUFACTURERS,
New York 20, N. Y., February 17, 1948.

Chairman, Patent Subcommittee, House Judiciary Committee,

Washington, D. C.

DEAR CONGRESSMAN LEWIS: It is our understanding that hearings will be held on H. R. 2860 on February 18 and, because of its interest in the subject, I would like to take this opportunity to present to you the views of the National Association of Manufacturers on this proposed measure.

The NAM recognizes the need for prompt action for registration of designs in the textile industry and other industries of similar character where the designs are of a seasonal nature. However, the NAM questions the means proposed in this bill for attaining this objective.

Design patents were formerly granted at a speedy rate in the Patent Office, and the NAM is of the opinion that the same can be done again. Merely transferring this function to the Register of Copyrights would not meet the objective. The NAM is further of the belief that the objective for speedy action should not be limited to the textile industry, but should include industries of similar character where the designs are of a seasonal nature.

For these reasons the NAM is conservatively inclined toward H. R. 2860.
Sincerely,

HOWARD E. BLOOD,
Chairman, Committee on Patents and Research.

INFANTS' AND CHILDREN'S COAT ASSOCIATION, INC.,
New York, N. Y., February 13, 1948.

Mr. C. MURRAY BERNHARDT,

Chief Clerk, House of Representatives Committee on the Judiciary,

Washington, D. C.

DEAR MR. BERNHARDT: Thank you very much for your letter of February 11 in which you are inviting me to appear before the committee relative to bill H. R. 2860 on textile design registration.

In view of the fact that the hearings are being held on February 18, it will be impossible for me to appear before the committee; and, further, having received your letter today, I could not very well prepare a statement and send you 25 copies thereof.

But, if it is at all within the procedure of the committee, I hereby wish to authorize you or anybody that you may delegate, to read into the record the fact that this association, representing 90 percent of the manufacturers of infants' and children's outerwear apparel, such as coats, snowsuits, and legging sets,

very definitely opposes the enactment of a bill on textile design registration, and particularly bill H. R. 2860 which goes even to the extent of copyrighting weaves or constructions of materials.

The reason for that, primarily, is that it would narrow the market for obtaining materials in popular prices so that we can, within reason, clothe the children of this country. In our opinion, it definitely would tend to confine desirable merchandise and, thereby increase its cost to the industry, and, as a general industrial proposition, it is not conducive to our being able to serve the consumer and the public properly.

I hope that this will serve the purpose, and further, that the committee will take cognizance of our position and its importance to us. I remain,

Very truly yours,

CHARLES BAKER,
Executive Director.

STATEMENT BY SYLVAN GOTSEAL BEFORE THE HOUSE SUBCOMMITTEE ON PATENTS, TRADE-MARKS AND COPYRIGHTS ON FEBRUARY 18, 1948

I am counsel for many leading textile concerns and trade associations who are vitally interested in the field of design protection, including the Textile Distributors Institute, representing 144 leading rayon converters, and the American Council of Style and Design, Inc.

At the hearing held before this subcommittee on May 21, 1947, I was given the opportunity to present my views on H. R. 2860, the bill to provide protection for designs for textile fabrics. At that time there was practically no opposition to the bill and for that reason I, and other witnesses, presented only affirmative arguments in support of the adoption of the bill. I submit that the arguments there advanced were cogent, and I respectfully refer this committee to the printed report of the hearing, appearing under Serial No. 13, May 21, 1947. However, in the past several weeks, after the subcommittee reported the bill to the full committee with a unanimous approval thereof, opposition to the bill has suddenly appeared. The opponents of the bill have openly stated their objections to it in the public press, and I wish to take this opportunity to answer their principal objections.

If I may be permitted to say so, it is my opinion that the principal opposition to this bill is founded upon the misunderstanding of its objectives, as well as its contents.

The primary theme of objection raised at this time is that the bill is an attempt on the part of large textile manufacturers to develop monopolies. The argument has been raised that the adoption of this bill will promote monopolistic practices and will increase the price of textile products to consumers. I respectfully submit that nothing could be further from the actual fact.

This bill is not the product of the thinking of large textile interests. For exemple, it is backed by a great number of small independent rayon converters. The function of the converter is comparable to that of the artist or stylist. It is the converter who buys textile fabrics in the raw or grey state and prepares his own designs, prints, or patterns which he causes to be imposed upon the textile, with the result that a finished cloth, bearing stylized patterns or designs, is produced for use in the manufacture of clothing or other textile articles. The textile converter, then, really has a first-hand interest in the problem of design protection. I know of my own knowledge that since 1913 these textile converters have been attempting to have some type of commercial textile design protection written into our laws. These are the concerns which suffer most from design piracy. When the small converter develops a pattern or design which he believes will attract the public's attention, he seeks some assurance that others will not copy his design and produce an inferior imitation which may attract the public's attention. If he had some such assurance as is provided in H. R. 2860, the introduction of new designs in the textile field would not involve as great a risk as it does under the current law. With adequate protection the converter could order larger runs of the product incorporating his design, and thus reduce the unit cost of the product. He could be reasonably certain that if he was correct in his anticipation of the public's demand for his design, he would have the opportunity to sell it in relatively large quantities and would know that others could not copy the design and market it in such a way as to reduce the demand for his product. It is my honest opinion that

the adoption of H. R. 2860 will reduce, rather than increase, the cost of textile fabrics.

As a matter of fact, as an answer to the charge that this bill is a "big business" weapon, it should be noted that the only rayon interest to oppose this bill is probably the largest producer of rayon in the country.

Opponents of the bill state further that it will be impossible for the Register of Copyrights actually to carry out the provisions of the proposed statute. I know of no better authority to answer this question than the Register of Copyrights. The Honorable Sam B. Warner has studied the bill carefully, has conferred with leaders in the field of textile designs, and has examined the facilities which would be available to him to administer the registration provisions of the act. He has testified before this committee that in his opinion the proposed legislation is feasible and can be easily and expeditiously administered by his office. In the statement made by Mr. Warner before this subcommittee on May 21, 1947, he expressed his complete confidence in the ability of the Office of the Register of Copyrights to examine applications and act upon them within a period of 7 days after receipt.

I submit that the argument of the opposition to the effect that the Register of Copyrights will have to exercise "discretion" in the matter of accepting or rejecting registrations, is no argument at all. In every field of protection, including mechanical patents and literary copyrights, there must be discretion exercised by the examining person or agency in order to determine whether the submitted product is entitled to the protection which is due an original conception. Furthermore, although the issuance of a certificate of registration under the proposed legislation would be prima facie evidence that the registered design was original within the meaning of the act, the final determination of this question would rest with the courts and not with the Register of Copyrights. In other words, if a party against whom an infringement action is brought could demonstrate to a court of competent jurisdiction that the design covered by a certificate of registration actually was not a novel design within the meaning of the act, no harm can come to the alleged infringer. This is along the same general lines as the current copyright statute, which certainly has been found satisfactory in most respects.

The statement has also been made in opposition to this legislation that there are a multitude of designs which have been used on textiles for a great many years and which, in effect, are in the public domain. The opponents have stated that these designs should not be subject to appropriation by anyone for "their own monopolistic use." Even a cursory examination of the bill will reveal such old and well-established designs are not subject to appropriation by anyone. The only designs which would be protected are "novel textile designs" which are defined to mean those which have "never before, anywhere in the world, been represented pictorially as a textile design, or been applied to or incorporated in any textile." In other words, the drafters of the bill have recognized that it is administratively impossible to go back through history and determine who were the originators of designs which generally have been accepted and used by the textile industry. They have concluded, therefore, that it is appropriate to give protection only to textile designs which have not heretofore been used.

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Retailers have raised the objection that "the owner of a registered design claiming an infringement * * could, even without obtaining a restraining order or injunction, approach the retailer with a demand for information concerning the source of the alleged information. ** In other words, the retailers have expressed the fear that if they sell a textile which is not registered and which does not bear the registration stamp, they may be swamped with inquiries from owners of registered designs. In the first place, I sincerely believe that if this bill is adopted there will be relatively few unregistered designs marketed commercially. In fact, unregistered original fabrics probably will be so scarce that when a retailer purchases them he will seek assurances from his source of supply that they are not copies or subject to registration. thus avoiding any subsequent difficulties. In the very nature of things, an unregistered design cannot be substantially similar to more than a very few registered designs. There can only be a very few owners of registered designs who would be in the position to seek information from the retailers concerning an alleged infringment. The furnishing of this information cannot be burdensome to the retailer.

The retailers have also stated that they might have a substantial quantity of textiles tied up in their inventory for indefinite periods since "after a re

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