will also agree to give us this opportunity for establishing in the United States that same protection for initiative and artistic worth in commercial designs that is given to our fellow workers in other countries.

BRIEF TO BE PRESENTED BEFORE THE SUBCOMMITTEE ON PATENTS OF THE HOUSE JUDICIARY COMMITTEE

INTRODUCTION

Mr. Chairman, gentlemen, my name is Gilbert H. Robinson, and I am executive vice president of the Julius Forstmann Corp., and assistant to the president of the Forstmann Woolen Co., located respectively in New York City and Passaic, N. J. We are manufacturers and distributors of fine-quality woolen and worsted fabrics.

It is a great privilege to be permitted to appear before the Subcommittee on Patents of the House Judiciary Committee. I sincerely trust that the ideas which I present may help contribute to a favorable decision and the ultimate passage of bill H. R. 2860, which provides protection for designs for textile fabrics. I shall endeavor to confine my remarks to the considered effect of this bill on the wool and worsted industry and upon our company as a part of that industry.

THE WOOL AND WORSTED TEXTILE INDUSTRY TODAY

As most of you know, throughout the war, the wool and worsted textile industry not only met in full all of the demands for fabrics placed upon it by the armed forces and UNRRA for both here and abroad, but in addition provided all the material necessary to warmly clothe the entire civilian population of this country. This gigantic task was accomplished almost entirely with existing facilities and without Government loans and the building of new plants. For the most part, it was achieved by stepping up the efficiency on the existing facilities, working 24 hours a day, 7 days a week with three full shifts.

With the end of the war and the consequent cancellation of Government orders, the complete force of this stepped-up production was turned entirely to the production of civilian goods. The year 1946 saw the biggest peacetime volume in the history of the industry. The goods were hungrily consumed by a warweary people and by the men and women released from the armed forces desperately anxious to be back in civilian clothes once more.

However, in the last 6 months, there is very marked evidence that this tremendous pent-up demand has been to a large extent satiated. Buying has become very selective. Ordinary staple fabrics of medium or poor quality are not being purchased. The consumer is insisting on new interestingly styled fashion fabrics in good quality at fair prices. This is particularly true of woolen fabrics as contrasted to worsteds, in both the men's and women's apparel field. There are reports every day indicating that many mills, whose production is confined entirely to woolen fabrics, are reducing shifts, cutting operations to 3 and 4 days a week, or closing entirely. In addition, there is evidence that the saturation point in worsted fabrics will also be reached by the end of the year.

With everything indicating overproduction of uninspired fabrics against a waning demand, there is the great danger that the woolen and worsted industry of this country will sink back into conditions that prevailed during the 1930's, unless something is done to help stem the tide and give it new strength and stability. It is our opinion that this design registration bill, H. R. 2860, now being considered, will contribute the needed strength and stability.

CONDITION OF THE WOOL AND WORSTED TEXTILE INDUSTRY DURING THE 1930'S In order to understand the need for this legislation now, so as to prevent the return of the industry to prewar conditions, it is necessary to examine briefly the situation that prevailed during the 1930's, and that is again threatening.

From 1931 to 1939, the woolen and worsted textile industry operated at less than half of its capacity. During that 10 years, companies in the industry lost more than $100,000,000. Pirating of designs plagued the industry, substantially contributed to its unhealthy condition, and effectively prevented its recovery.

A few unethical, unscrupulous members of the industry did all the damage. As soon as a design was created by a legitimate manufacturer and proven suc cessful in the market, the pirates would hop on it, produce it in poorly constructed cloths of inferior fibers and sell these copies at ruinous prices.

The legitimate producer who endeavored to do creative work during this period found himself in serious straits. Creative designing in the woven field is a very expensive undertaking. It is necessary to actually run hundreds of trials through every production operation, before selecting the design decided upon as the most fashionable and most sure to be accepted by the public.

Under the conditions that prevailed in the 1930's the legitimate operator found it necessary to plan only a short run on a particular style developed and accepted. With a short run, each yard produced, of necessity, had to bear a very high. designing cost. The legitimate operator could not figure on a long-run production because he knew that the minute a design proved a success, his unscrupulous competitor would knock it off. These creators, making small quantities, sold only a limited market. The mass markets, on the other hand, received copies at somewhat lower prices. In spite of no designing costs, these copies were poor values because the pirates used inferior raw materials and manufactured them inefficiently.

These poor values which were foisted on the consumer were specific acts of deception and thoroughly contrary to the public interest. The consumer bought the copy believing that she was getting the quality of the original, but in fact was purchasing a garment made of a fabric which could not possibly give the wear and the service, dollar for dollar, which she had a right to expect.

At the same time, the manufacturer who made the garment and who had made an investment in the original fabric and the retailer who had taken a position for the good of his customer in those garments made in the original fabric, all of a sudden found their markets shot out from under them by the unfair competition resulting from the copies. They not only suffered acute financial loss, but were discredited in the eyes of their customers to a point of seriously jeopardizing their future business because the customer was unable to discern the actual difference in value that existed between the original and copy until the damage had been done.

As a result of all this, the creative leaders of the industry were discouraged to the point where they did less and less designing work. The tendency was to turn more and more to the production of a few staple, nondescript fabrics. Such fabrics did nothing to stimulate demand. Production limped along at less than half capacity, labor had spasmodic work or no work at all, and the industry was profitless and unsuccessful.

POSSIBLE MEANS OF PROTECTION

At that time, and right up to the present, on superficial examination, there seemed to be some legal means provided through which the legitimate manufacturer could obtain protection from his unscrupulous pirating competitor.

The most obvious of all the possible avenues of protection was for the legitimate manufacturer to make application for a design patent, which the patent laws provided for. From 1935 to 1940, the Forstmann Woolen Co. made application for 130 design patents, 78 of which were granted. For the most part, however, by the time they were granted, the need for protection was gone. It took as long as 28 months in the case of one application to secure a patent, and the average on all of them was over 7% months. Because style moves swiftly, by the time the apparent protection was afforded, the need for it had come and gone. The copyist had reproduced the design in cheap materials, poorly constructed, at a ridiculous price, ruined the market and deceived the general public by selling a false bargain.

Furthermore, in the case of design patents, we learned through the court experience of others that its legal value was practically worthless. As has been pointed out in other testimony before this committee, the patent philosophy implies invention in the functional sense. Textile design has artistic novelty rather than mechanical invention. It is the way a cloth looks which needs protection, not the way it is made. As a result, in those cases which did go to court, it was reluctantly pointed out by the jurist presiding that under the present interpretation of the patent laws, the case of the plaintiff against copying could not be sustained. At the same time the court agreed that textile designs were entitled to protection and that new legislation by Congress was the only means of obtaining it.

Turning from the field of design patents, it also seems possible at first examination that a cure for design piracy might be secured from the Federal Trade Commission, since stealing of designs is quite obviously an unfair trade practice. However, here again, the time element is a deterring factor. The cease-anddesist procedure of the Federal Trade Commission and the subsequent court

action takes so long that the pirating competitor makes his kill and ruins the market before the effectiveness of the Commission's order is felt.

During the 1930's some temporary hope of design protection was stirred up by the inclusion of antipiracy clauses in the NRA codes. However, these clauses were never effective because the unethical producer continued to operate in the regular way in bold disregard of these clauses in the code. With the ultimate declaration of the unconstitutionality of the NRA, all hope from this source died.

DESIGN LEGISLATION

Through the years prior to the war and going as far back as 1905, there were many attempts to develop design-protection legislation such as this committee is considering now. In 1931, a bill containing many of the principles incorporated in H. R. 2860, passed the House of Representatives, but failed to pass the Senate only because the Seventy-second session of Congress ended before the bill could be considered. From 1932 through 1937, there were hearings on similar design-protection bills and the records of Congress show the desperate need that the textile industry has for such legislation.

As recently as the last Congress, Congressman Fritz Lanham, then chairman of the House Patents Committee, introduced a bill very similar to that which is now being considered by this committee. No action was taken by that committee because it was introduced so near adjournment of the Seventy-ninth Congress that there was not sufficient time to carefully consider it.

WHAT BILL H. R. 2860 WILL DO

The management of the Fortsmann Woolen Co. has very carefully studied bill H. R. 2 60. We are convinced that its passage will directly be instrumental in preventing the return of the woolen and worsted industry to the unhealthy conditions of the 1930's. We are sure that it will bring much needed assurance of stability to an industry which of the 177 leading manufacturing industries of our Nation is the seventh largest employer of labor, and ranks fourteenth in the dollar value of its product.

This bill will once more encourage the legitimate operators to undertake extensive designing. As a consequence, demand will be stimulated. The legitimate producer will feel safe in backing his judgment on designs which he controls, with extensive production runs. This will permit the amortization of design costs over a large quantity of material. It will also permit the efficiency of mass production. The result will be to bring first-quality products to greater numbers of people at a much lower price. The ultimate consumer can buy with the assurance that he or she is getting the best product for the money, and need not be concerned that the neighbor down the street will obtain a week later at a much lower price a garment made in a copy, but produced in an inferior cheap material, poorly constructed.

This bill will make possible through long-run planning and mass production the steady flow of business. The seasonal shut-down of the 1930's will be dispensed with, and year-round employment at a high level will be substantially assured.

This bill will either force the pirating producers out of business or make them legitimate. Creative designing will be encouraged at every price level, not just at the top. It will help to eliminate the great waste which has resulted in times past from copying designs successful only in the top strata of fashion, into lowerpriced mass fashion fields where they are not suitable. It has been proven sound that those mills catering to lower-priced volume fields should design especially for their own fields. This bill will force this to 'take place.

The passage of this bill will give great impetus to the designing and creative talents of this country, which particularly came into their own during the war when ideas from abroad were completely shut off. Until recent years, France has been recognized by the world as the creative center for fashion and matters pertaining to textile design specifically, which has been due in the main to the sound design protection laws which have been in effect for many years in that country. These last years have proven that this country has all of the genius and talent necessary to compete and, yes, assume the fashion and designing leadership for the future, provided that adequate legislation is enacted by the Congress of the United States to furnish protection and prevent the theft of the designs so created.

CONCLUSION

All of us are anxious to see the prosperity of our great country maintained at a high level and the well-being of the people continued. We have learned that the answer lies in a high rate of production with consequent full employment, and resulting in the maintenance of a high national income. We are convinced that the passage of this bill is imperative to achieve this end and will make it possible for the wool and worsted industry to contribute its share to the general prosperity of our country.

In the light of these facts, we respectfully urge that this committee act favorably upon this bill.

BRIEF PRESENTED ON BEHALF OF THE NATIONAL ASSOCIATION OF WOOL MANUFACTURERS IN REFERENCE TO THE DESIGN REGISTRATION BILL H. R. 2860.

House bill 2860, which proposes to provide for the registration of "novel textile designs," was considered at a meeting of the board of directors of the National Association of Wool Manufacturers on May 20.

The association is in agreement with the objectives of the bill as we understand them and as they have been explained by the principal proponents of the bill. It is our understanding that the bill was intended to apply primarily to novel designs printed on textile fabrics rather than to effects produced by the arrangement of threads in so-called harness-woven fabrics. This appears to be the intent, but the language of the bill as introduced is unnecessarily broad and might lead to later attempts to expand the scope of the bill by administrative action into fields where it cannot operate satisfactorily.

We do not believe that it was intended to provide for a presumption of originality in the case of color or surface effects achieved by a slight variation in the arrangement of threads in the warp or filling of a harness-woven fabric. While there is substantially nothing "novel" in the field of harness-woven unprinted fabrics, it would be impracticable to catalog the many variations possible in the arrangement of warp and filling threads, and an effort might be made to secure registration for fabrics incorporating such minor changes. Even though not "novel" in the sense that the term is used in the bill, it would be expensive and difficult to secure samples of previously used fabrics which had the same characteristics of weave and finish.

It is our belief therefore that the definition of a textile design should be amplified to make certain that the registration of textile designs is limited to the particular field where it is desired and where it can be administered properly and with general satisfaction. In our opinion, this field is limited to designs which are printed or embossed or produced by Jacquard weaving where the result may truly be considered a "design" as distinguished from a "pattern" such as is produced in a harness-woven fabric.

We therefore respectfully recommend that section 1 (b) be amended to read as follows:

"A textile design' means a formalized design of line, color, relief, or density of texture achieved by printing, embossing, Jacquard weaving or knitting, embroidery or similar operations. However, the term 'textile design' does not include a pattern or texture achieved by harness weaving or by knitting (other than Jacquard) through the arrangement of fibers, threads, yarns, or filaments or combinations of the foregoing in different colors, sizes, or twists."

It is our belief that such a definition is satisfactory to the principal proponents of this bill, and we hope the Committee on the Judiciary will give favorable consideration to its incorporation as the definition of a textile design. Respectfully submitted.

NATIONAL ASSOCIATION OF WOOL MANUFACTURERS, By ARTHUR BESSE, President.

STATEMENT SUBMITTED BY IRENE BLUNT, SECRETARY OF THE NATIONAL FEDERATION OF TEXTILES, INC., AND DIRECTOR OF ITS INDUSTRIAL DESIGN REGISTRATION BUREAU My name is Irene Blunt and for 30 years, I have been on the staff of the National Federation of Textiles, Inc., formerly known as The Silk Association of America. This is a trade association founded in 1872 which, today, includes

in its membership about 85 percent of the capacity of the synthetic- and silkweaving industry. I have been director of the design registration service, which is known in the industry as the industrial design registration bureau, since its inception in 1928, and have been active in working out the practical problems of avoiding conflict in design in the industrial field. I have assisted in the preparation of designs for submission to the Patent Office and I have discussed with representatives of industry, both here and abroad, the various aspects relating to the statutory protection of industrial designs. At previous hearings on bills similar to H. R. 2860 I have appeared to point out, as I wish to do at this time, the workability of a plan to permit copyright protection of designs and at the same time give free play to design trends and avoid protection of designs that by their long usage are old and too well-established to warrant ownership rights for any one person.

The design registration bureau of the federation was started in 1928, as the result of long years of unsuccessful compaigning to secure copyright protection for industrial designs, particularly textile designs, in the United States. It was believed in the silk industry, with which I was directly associated, that a system of filing designs in a central agency, such as systems followed in England, Germany, and France, older textile-producing countries, and of giving the registrants a right in the courts to sustain prior use would mean much in promoting use of good designs in the rapidly growing American fabric market. The system was substantially the copyright system of the United States, but United States copyrights did not apply to designs on manufactured articles. Moreover, because of the relatively short life of a design, compared to a book or painting that might be sold under a copyright, it was necessary to have a form of procedure that would cover a shorter period than the standard copyright law and would provide for a clearance of designs in order to be as sure as possible before granting the copyright that the design was not already in use. It was true that the United States Patent Office granted design patents but in a rapidly changing style market like printed fabrics, the procedure of securing a patent, primarily applicable to mechanical inventions, did not fill the need. Furthermore, the principle of a patent, that it be an invention, did not apply to differences in designs.

After many years of failure to convince Congress that the copyright legislation was needed, and would work, the industry decided to demonstrate the plan by organizing a voluntary design registration service. They would try to do as much as possible in the voluntary elimination of design duplication within the industry. Thus the textile, later the industrial design registration bureau was started in August 1928. I was given the work of organizing the bureau and putting it in operation. We had good advice from several leaders in the industry who were familiar with the European systems and who were sufficiently openminded to make a try at a cooperative plan based purely on voluntary participation. We are still operating the bureau for the fine fabric industry, that is, dress fabrics which used to be made of silk and are now made of synthetic yarns and blends of other fibers. Registration of print designs has become a wellestablished habit with the great majority of fabric distributors. Conflict has been reduced radically and the use of prints during those years has increased, rather than decreased.

The users of the bureau cover a wide range as far as price of fabric is concerned. We do not consider or know the prices at which the fabrics are to be marketed when printed from the designs we clear through the bureau but in our industry, there is a general knowledge of the various price ranges sold by the individual firms. We know that among the nearly 80 clients of the bureau in 1947 at one extreme is the high-style fabric house catering to the exclusive couturier trade and at the other extreme is the converter, i. e. the distributor of printed fabrics for use in house dresses and the lowest-priced street dresses. All of the designs have equal status when it comes to considering whether or not they are new and entitled to registration because they do not conflict with any previously filed. Some of the firms make their own designs. Most of them buy designs from commercial studios which are, in reality, selling agencies for designers. Designers find it possible to so very motifs, arrangements, and ideas that thousands of designs can be registered within a year without making any two of them so similar that the average layman could not detect the difference. It might be of interest