Also, the previously suggested fee has been increased to $10 in this new bill and the requirement is made that the Register of Copyrights shall make a search. But quite obviously $10 is not enough to cover an adequate search and absolutely no provision is made for the gathering of or classification of prior art. The present $10 fee for a 3-year design patent is said to be inadequate by the proponents of an increase in all Patent Office fees. The new bill provides that the Register of Copyrights shall make an examination and if it finds the design to be "original and novel" to issue a certificate of registration "within 7 days from the date of application." Obviously the examination and search will be a farce under those conditions, which means that there is no sincerity in the earlier part of the bill where novelty is required and the Register of Copyrights is told to establish a file of textile designs. No more sincere is the implication that defendant may prove prior art to invalidate registration. With no provision for classification of designs a validity search would be most impractical and a great burden to defendant. The automobile industry would be interested in knowing what is meant in section 9 (c) by the words "distributor at retail." An automobile manufacturer purchases upholstery material from the mill, builds it into the car, sells the car to a distributer or dealer, and the dealer is the ultimate retailer. But the automobile manufacturer himself should be placed in the same position as the retailer because we are certainly in no position to determine the question of infringement any more than is our dealer. In this connection we note that wearing apparel is specifically excluded from the proposed act. Even more important would be the exclusion of any material used in the manufacture of automobiles and we ask that if it is felt that some bill must be passed then that automobiles be specifically excluded. In section 9, the last paragraph, provisions of the copyright law are said to apply. One such provision is that infringing articles shall be impounded and in some cases destroyed. An innocent infringement in the case of automobiles could run such destruction into a great deal of money. This merely shows the inappropriateness of this sort of legislation, at least as applied to automobiles. The injunction provision is drastic and a large automobile plant could very easily be tied up on nothing but affidavits. I have only covered the high spots in the objections to a bill of this sort and I hope these matters will have your attention if the bill is further considered by the committee. Very truly yours, MILTON TIBBETTS, DUELL & KANE, New York 17, N. Y., May 20, 1947. Re public hearing on H. R. 2860. House of Representatives, Washington, D. C. DEAR SIRS: The committee on copyrights and design patents of the New York Patent Law Association has the following to report on the above bill. The bill relates to protection of designs for textile fabrics, and defines "textile" as "a woven, knitted, or lace textile fabric." Recommendations: (1) H. R. 2860 is not desirable legislation. General discussion: As a general proposition, we believe that piecemeal amendment or revision of the Design Patent Act is inadvisable. The entire field of protection for industrial designs should be tackled at one time with a view of making creative efforts of the type involved in creating industrial designs susceptible of protection no matter whether it is called "copyright" or "design patent." Essential difficulties in this field have come from- (a) use of the word "invented" in the statute and the changed meaning given this word during the passage of time, and (b) delay in the Patent Office in granting protection. Specific comments on H. R. 2860: As for the bill itself, the following notes are made: 1. The bill seeks to transfer a small field of "design" from the Patent Office to the Copyright Office and the protection will therefore be known to the public as copyright protection, yet it will require— (a) a search in the Copyright Office analogous to a Patent Office search. Is the Copyright Office staffed for this? (b) Filing an application before the design is published or used. This is directly opposite to ordinary copyright protection requiring use with copyright notice before application is filed. (c) There can be infringement by use of a subsantially similar design even if it was not "copied." This is analogous to patent infringement, not copyright. This mixing of protection in a small field will cause confusion. 2. "Textile designs" relate to too narrow a field. From the definition given, "textile" means woven, knitted, or lace textile fabric (sec. 1 (a)). It seems that the entire bill creates a very specific type of property not coextensive with the creative effort involved. Other than problems of weaving, knitting, or making lace, and the limitations which these mechanical processes impose on the designs, there is no difference in creative effort required to make surface ornamentation designs in arts such as wallpaper, wrapping paper, linoleum, sheet plastic, laminated plastic, and the like. For instance, the entire design appropriate for a textile design could be printed on paper and laminated. Paper draperies also contain all the features of a textile design except the material. According to the bill, one could boldly appropriate the creative effort which went into "textile designs" as defined, and use them free of infringement claims in arts other than "textiles." 3. There is no provision for publication of designs analogous to the Official Gazette. We believe there should be regular publication of all copyrighted designs so that the public can obtain notice and make adequate searches. 4. The bill requires the application to be filed before the design has been published or used (sec. 2). The fee and other expense called for is too high to be attractive where filing prior to any commercial use is required. If enacted, hardship would surely result to small independent or free-lance designers. 5. In article 17 there is no possibility of copyright protection for designs originated before the effective date of the act. Genius in this field "seems to have taken an enforced vacation." Morris Kirschstein, Esq., a member of this committee, did not take part in the deliberation or action of this committee with respect to H. R. 2860 because of his engagement in court in the trial of a pending action. Respectfully submitted. The Honorable EARL R. LEWIS, DAVID S. KANE, Chairman. PHILIP T. DALSIMER, NATIONAL RETAIL DRY GOODS ASSOCIATION, Chairman, Subcommittee on Patents, Trade-Marks, and Copyrights, House Judiciary Committee, Washington, D. C. MY DEAR CONGRESSMAN LEWIS: For many years the National Retail Dry Goods Association has been obliged to oppose various bills in the Congress which proposed to grant protection for registered designs. Such action was rendered necessary by the fact that all such proposed legislation inevitably placed an unfair responsiiblity upon retail stores, and threatened to hinder the important services of distribution. With the introduction of the Hartley bill (H. R. 2860) we had sincerly hoped this measure might prove to be one which retailers could support. However, we find upon analysis that, while many of the objections contained in former measures have been eliminated, the Hartley bill cannot be regarded as completely meeting the situation. First, under the Hartley bill, only "novel textile designs" may be registered and a "novel textile design" is defined as one which never before, anywhere in the world, has been represented pictorially as a textile design or been applied to or incorporated in any textile. When the antiquity and universality of textiles is considered, it must be obvious that it would be quite impossible for the Register of Copyrights, to whom the applications for registration must be made, actually to carry out the provision of the proposed statute and be assured that never before, in any part of the world, has such a design been used in textiles. Therefore, it must be assumed that, in his endeavor to administer the provisions of the act, he would be obliged to exercise discretion. Unless he were to refuse to register any designs, he must ́allow certification without a complete knowledge as to whether or not the design actually was "novel" within the meaning of the act. It should be recognized that during the centuries a multitude of designs and design motifs have been used in the manufacture of textiles and these have become a great reservoir of designs which are the property of any who may desire to use them. Congress should be extremely reluctant to approve any legislation the effect of which might be to allow anyone to appropriate such designs or design motifs to their own monopolistic use. In the provisions for actual administration of the proposed act it would appear that unnecessary burdens would be forced upon retailers who distribute textiles and garments made of textiles. Manufacturing processes are carried on in comparative secrecy. The manufacturer does not announce to his competition the designs upon which is plant is working. In transportation, textiles are packed and concealed from view. Only when the fabrics, or garments, reach the retail store is the merchandise exposed to the view of all men. It is at that time, while the goods are in the hands of the retailers, that any alleged infringement of a registered textile design is most likely to come to light. As the Hartley bill is written, the owner of a registered design claiming an infringement had occurred could, even without obtaining a restraining order or injunction, approach the retailer with a demand for information concerning the source of the alleged infringement and other information. If this occurred only rarely, it might not become too great a burden but we fear that many infringements might be claimed and the result would be a serious interference with the business of the retailer. After a restraining order or injunction were obtained the bill is not sufficiently clear as to whether a retailer would then be permitted to sell such infringing textiles as he might have in his stock or whether he would be forced to retain these goods in his stock until the claim of infringement were adjudicated. It is, therefore, conceivable that substantial quantities of goods might be tied up for indefinite periods. There is every reason to fear the retailer would be the innocent bystander whose interests would be sorely jeopardized while manufacturers quarreled over who was the actual owner of a design. The alert merchant engaged in creative merchandising would, we believe, find himself in constant jeopardy if this bill were enacted into law. It is common practice for merchants engaged in creative merchandising to secure from textile manufacturers designs that are unique and new and sold to him exclusively. In this case it would obviously be necessary for such a merchant to maintain a textile design library equal to that maintained in the office of the Register of Copyrights. Despite such attempts at protection a merchant could never feel secure that at some time in the future a court might adjudicate a design, which he and the Register of Copyrights considered a "novel" design, to be, in fact, an infringing textile. Another serious question arises in the study of this bill. We have been unable to find any but general provisions to cover a situation where a retailer has in his stock garments manufactured from a textile which is later adjudicated to be an infringing textile. We feel the committee should give serious consideration to this particular question. We are confident that the interests of the Congress and those of the retailer are parallel. Neither is interested in tying up large quantities of salable merchandise in the hands of an innocent purchaser while lengthy legal processes are carried out. We could point out many other things which are not desirable in the bill's provisions. For example, the method indicating a design has been registered may be through a mark on the fabric or on the wrapper or package in which the goods are contained. It should be recognized that when fabrics have been cut and made into finished garments there would be little likelihood of either of these methods of marking remaining upon the merchandise or upon the package. Similarly, wrappers and packages may become defaced and such mark be missing when the goods reach the store. In view of the foregoing, we feel it is incumbent upon the National Retail Dry Goods Association to submit the above questions to your honorable committee for consideration in connection with the proposed legislation. We disapprove of H. R. 2860 as presently drawn because we feel it would cause too much hardship to too many people to be justified by the benefits it would confer. For these reasons we trust that your honorable committee should proceed with the greatest caution in order that the best interests of all concerned in this important subject are protected. Respectfully submitted. NATIONAL RETAIL DRY GOODS ASSOCIATION, By JOHN C. HAZEN. BURLINGTON MILLS CORP.. Greensboro, N. C., May 20, 1947. Reference: H. R. 2860, a bill to provide protection for designs for textile fabrics. JUDICIARY COMMITTEE, House of Representatives, Washington 25, D. C. DEAR SIRS: In connection with the hearings on H. R. 2860, we should like to make some comments and suggestions which your subcommittee may find pertinent and helpful. It is our thought that this bill goes too far by including designs woven into the fabric as well as those applied to the surface. It is our understanding that the pirating of designs which inspired the drafting of this bill has largely been confined to those designs applied to the surface of the fabric. Therefore, by limiting the bill to this type of textile, the main objectives of the bill would be met. Burlington Mills Corp. is engaged principally in manufacturing rayon gray goods. The finishing is done by converters. Our technical experts are of the opinion that it would be most awkward to our operations if we found it necessary to register every variation of weaving that we use in our manufacturing procWe believe that other weavers of rayon as well as cotton-goods manufacturers would also agree on this objection to the bill. esses. At a round table discussion some time ago, we explained our objections to the present draft of the bill to Miss Irene Blunt of the National Federation of Textiles, and Dr. Sam Bass Warner, Register of Copyrights, who seemed to sympathize with our views and suggested that we submit amendments which would meet these objections. Accordingly, for the convenience of your subcommittee, we are attaching herewith draft of amendments which in our opinion would remove the objections mentioned above and facilitate the administration of the bill. Very truly yours, JAMES J. FARRISS. Washington Representative. PROPOSED AMENDMENTS Amend section 1(b) to read as follows: "(b) A textile design' means a pattern for any textile which is applied to the surface of the textile but shall not include any design woven into the textile or produced by incorporating specialized yarns or fibers into the textile." Change section 1 (f) as follows: "(f) Infringing textile' means a textile to the surface of which has been applied any protected textile design or any substantial resemblance or imitation thereof without the written consent of the owner of such design.” Amend section 7 by changing lines 9 and 10 to read as follows: "That the textile design has been applied to the surface of a textile made or sold in the United States and a fee of" etc. Amend section 8 by changing lines 16, 17, and 18 to read as follows: "Sec. 8. The owner of any protected textile design or his licensee or assignee shall cause every textile to the surface of which the design has been applied" etc. BURLINGTON MILLS, CORP., Greensboro, N., C., May 28, 1947. Reference: H. R. 2860, a bill to provide protection for designs for textile fabrics JUDICIARY COMMITTEE, House of Representatives, Washington 25, D. C. (Attention, Mr. Bernhardt.) DEAR SIRS: This supplements our letter of May 20, 1947, concerning H. R. 2860, After the hearing on this bill we asked the production and sales departments of Burlington Mills Corp. to prepare a statement setting forth an explanation of their objections to the inclusion of woven designs in the bill. This is summarized as follows: 1. The possibility of developing a weave which is completely new and bears no relation to existing weaves is so remote that we do not think registration of such completely new weaves should even be taken into consideration in any copyright bill. The art of weaving is so old and the number of basic weaves so great that, from a commercial standpoint, any new fabric that may be developed is virtually certain to be woven according to an existing weave or a variation thereof. 2. Were weavers of fabric required to register weaves, it could not help but create an intolerable burden on the commercial weaving industry, since it would be the responsibility of management, under such a registration law, definitely to ascertain that any fabric being woven by them was not in violation of existent legislation. Weavers would also, as a matter of protection, find it necessary on the enactment of the proposed bill to register every single weave that they were presently using or had used in the past. This would be an enormous and expensive task for the textile industry. 3. It is our considered opinion that registration of designs woven into the fabric would be such a monumental and difficult technical task that the administration of any registration program would be completely unworkable and so expensive that the cost of administering the program would more than outweigh any advantages to be gained. 4. Our experience in weaving rayon, cotton, woolen, and nylon cloth has definitely convinced us that the registration of designs woven into the fabric would simply interfere with the orderly conduct of our business and would offer no advantages whatsoever. We feel very strongly that other representative weavers will feel the same way. 5. We believe that if a woven design is created that is completely new, the originator of this design is entitled to patent protection and not copyright protection. Burlington Mills Corp. has always worked for the advancement of the weaving industry, and the only reason we are opposed to the registration of designs woven into the fabric is that we firmly believe that the result will act as a brake on the advancement of the industry and can only lead to continuous confusion, misunderstanding, legal difficulties, and great expense to all concerned. Very truly yours, JAMES J. FARRISS, Washington Representative. SUPPLEMENTAL STATEMENT OF KARL FENNING P. J. Federico, United States Patent Office, on considering H. R. 2860, objects to definitions therein but it is believed that this matter was taken care of in the course of discussions at the hearings and the definitions having been carefully prepared should stand as they appear in the bill. The objection to section 2 that it does not require the application for registration to state the name and address of the author seems not to be well taken. There is no necessity for this information and unless the Register of Copyrights desires it, it is believed that the bill should stay as it is. The Register by rule may require this or any other information he thinks necessary. The requirement that the application must be filed before the design is published or publicly exhibited is believed justified. Since there is merely a short protection granted and designs are generally of short life, many difficulties may arise if the design is put on the market without registration and without notice. In this particular industry it seems essential that registration be procured before publication. The requirement for marking in section 8 has been carefully worked out with those in the industry and Mr. Federico's objection seems to be merely one of taste or style and should not be adopted. |