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And, as mentioned by Mr. Murray when he was here, the House committee is still studying that particular field.
I believe that anything that can be done to study what might be done in case the Congress should decide to pass such a bill as the Rivers bill, as to what protection the industry might have, should be considered.
The CHAIRMAN. Apparently there is another line of argument that goes to the effect that there is no right of imitation. That is why I have emphasized several times that if there is a legal claim to that effect, there should be a legal memorandum on the subject supplied to the committee.
(The information requested will be found on p. 287.)
Mr. BRIGHTMAN. I would prefer that some of our legal people would investigate that particular field.
Dr. Hugo Sommer, professor of dairy industry at the University of Wisconsin, testifying on this same subject before a congressional committee in 1944, stated :
Livestock is essential to maintaining soil fertility and is the most economical means for rebuilding depleted soil. We can't shift our dietary more and more to field crops without decreasing livestock products. Such a shift involves soil mining and erosion. Crops, such as soybeans, are especially bad offenders as far as erosion is concerned. This policy is not only important to a sound, permanent agriculture, but to human health. Malnutrition is widely prevalent throughout the world and especially in sections which such products as milk, meat, and eggs do not constitute an adequate part of the diet.
History has demonstrated that those countries that have developed an animal product economy, and particularly dairying, have produced the most prosperous, energetic and efficient peoples in the world. Their soil and their people have maintained a productivity which has made this possible.
We ask you to act on this legislation only with full realization that your support of such legislation may impair a vital source of essential food to the permanent detriment of the people of the United States.
If you will notice, for the information of the Members of Congress I have introduced here a product table showing the many major products and the various ramifications of those products, and showing that what affects one dairy product has an effect on all of the dairy products.
The CHAIRMAN. Are there any questions?
Senator Lucas. May I interrupt just for a moment, to submit for the record a memorandum on that question of trade-mark right in the use of yellow color, as to whether at common law the color "yellow" could be the subject of a trade-mark?
The CHAIRMAN. Very well.
BUTTER HAS NO TRADE-MARK RIGHT TO THE COLOR OF YELLOW
One or more witnesses for the butter Interests have stated that butter has a legal, common-law trade-mark right in the color of yellow and accordingly yellow margarine cannot be made.
The chairman of the Senate Finance Committee has requested both sides to submit a legal memorandum on this alleged trade-mark right. Pursuant to that request, this memorandum is being submitted to show that under the law there is no substance whatsoever to such clạim.
In the first place, it is a well-established principle that a trade-mark, when it exists, is a proprietary right and is owned by an individual, be it a person or company, to distinguish his brand from anybody else's brand. In other words, Kodak is the trade-mark of the Eastman Kodak Co. to show that the articles with this mark are the output of such company. However, cameras as a class of commodities cannot under any circumstances possess any trade-mark.
A producer or seller of butter can have a trade-mark for his brand of butter to distinguish his brand from others on the market. However, it needs no legal citation, because the point is so elementary, to show that butter as a commodity on the market cannot possess a trade-mark right.
Furthermore, an individual butter producer has no right in and to the color yellow for his brand of butter. Furthermore, all the producers of butter together cannot claim that jointly, on behalf of the entire output of the butter industry, they possess a trade-mark right in the color yellow for a food. This is just flatly contrary to every established principle of law.
Furthermore, the law has been long settled that color alone may not be the subject of a trade-mark. To be a valid trade-mark, the device, design, or other combination sought to be sustained as a trade-mark must be capable of indicating origin or ownership of the goods. This is true under both the common law and the statutes which provide for registration of trade-marks. The following court decisions are in point:
Leschen Rope Co. v. Broderick (201 U. S. 166), decided almost half a century ago by the Supreme Court of the United States, is a leading trade-mark case where color was depended upon to constitute a valid trade-mark. Although some of the expressions by the Court were unnecessary for decision in that case, nevertheless the following views of the Supreme Court have long been followed by other courts and the administrative bodies concerned with the administration of the trade-mark laws. At page 171, the Court said as follows:
“Whether mere color can constitute a valid trade-mark may admit of doubt. Doubtless it may, if it be impressed in a particular design, as a circle, square, triangle, a cross, or a star. But the authorities do not go further than this. In the case of Handon's Trademark (37 Chan. Diy. 112), in which a trade-mark was claimed for a red, white, and blue label, in imitation of the French tricolor, for French coffee, it was held not entitled to registration under the English statute, which requires a trade-mark to be distinctive in order to be valid. The Court remarked as follows:
“ 'It is the plain intention of the act that, where the distinction of a mark depends upon color, that will not do. You may register a mark, which is otherwise distinctive, in color, and that gives you the right to use it in any color you like; but you cannot register a mark of which the only distinction is the use of a color, because practically under the terms of the act that would give you a monopoly of all the colors of the rainbow.'
"It is unnecessary to express an opinion whether, if the trade-mark had been restricted to a strand of rope distinctively colored, it would have been valid. As already observed, the claim is much broader than this.
In Green v. Ludford Fruit Products (39 F. Supp. 985), the district court said, at pages 986–987:
“The question of the color raises another problem. It is difficult to understand how the plaintiffs could claim a property right in the color alone. It is not subject to exclusive appropriation. Red is the natural color of several fruit drinks such as tomato and various berry juices. It is also used extensively in coloring artificially various soft drinks such as strawberry and cherry soda water. The color is nonfunctional and arbitrary, but the red shade probably possesses a certain eye appeal not present in the paler colors.
"Color alone cannot be the subject of a trade-mark. No one could claim the right exclusively to use a certain color which was but one of the many characteristics of his product, and prevent the use of that color by others who manufactured similar articles."
In Taylor v. Bostick (299 Fed. 232) the court said, at page 234, as follows:
"It is a well-settled general rule of law that a trader may not monopolize a particular color, and that color alone, unaccompanied by any distinguishing sign, seal, or symbol, is not sufficient to constitute a trade-mark." In In re W. T. Grant Co. (29 F. (20) 877) the court said, at page 878:
It was stated by the Commissioner that mere color cannot function as a trade-mark; that it is common practice for manufacturers and traders to color their articles of trade, or parts thereof, any and all colors' which judgment or fancy may dictate, for purpose of ornamentation; that the colors in such cases do not suggest to the public the idea of origin or ownership, which is the sole purpose of a trade-mark; and that it is only when colors are so impressed in a design as to suggest to the public that they are used to distinguish the goods of one manufacturer or owner from like goods having a different origin or ownership, that they may be said to function as trade-marks.
“In our opinion the Commissioner's conclusions are correct. In the case of In re Waterman Co. (34 App. D. C. 185; 18 Ann. Cas. 1033) this court considered an application for the registration of a color trade-mark for a fountain pen, which gave the color of the feed bar as red, and the portion of the reservoir or handle adjacent to the feed bar as black. Registration was denied upon the ground that a trade-mark cannot be acquired in the use of color not connected with some symbol or design, citing Re Handon's Trademark (L. R. 37 Ch. Div. 112); A. Leschen & Sons Rope Co. v. Broderick and B. Rope Co. (201 U. S. 166; 26 S. Ct.
425; 50 L. Ed. 710); and Diamond Match Co. v. Saginaw Match Co. ((C. C. A.) 142 F. 727).”
In Radio Corporation of America v. Decca Records (51 F. Supp. 493) the court said, at page 495:
“The color of the label is not functional qua color, as has been held in respect of matches with two colors, one on the head and one on the tip where they are to be struck. Cf. Diamond Match Co. v. Saginaw Match Co. (6 Cir., 142 F. 727, 729, 730).
“It seems to me, however, that it cannot properly be contended that a colored round label, affixed to the circular center of a circular disk record, is the use of color in the form of a design, as it must be to constitute a trade-mark. Cf. Leschen & Sons Rope Co. v. Broderick & Bascom Rope Co. (201 U. S. 166, 171 ; 26 S. Ct. 425 ; 50 L. Ed. 710). The circular shape of this center is inescapable. All that has happened is that a functional part of the record has been colored, not that a design has been achieved.
“This renders void the plaintiff's trade-marks, for color qua color may not be a trade-mark.”
In In re Security Engineering Co., Inc. (113 F. (20) 494) the Court of Customs and Patent Appeals said, at page 495, that:
“It is the well-settled law that for a mark to be entitled to registration it should be one which the law recognizes as being capable of distinguishing the goods of its owner from those of another.
"It is equally well settled that the validity of a mark and its right to registration may not depend upon color alone. Color may be an important feature of a valid and useful trade-mark, but color or colors alone when applied to the article as a whole, except under circumstances hereinafter particularized will not constitute a valid mark."
In International Braid Co. v. Thomas French and Sons (150 F. (20) 142) the Court of Customs and Patent Appeals said, at page 143, that:
“Furthermore, the law is well settled that a mark, the distinguishing feature of which is partly identified by the use of a design in color, may be registered, provided, however, that the designated color is distinctive and specific. On the other hand, the law prohibits the registration of a mark which provides for the use of any color as its distinguishing feature; for the reason not only that such á mark possesses no defined feature which would tend to identify the origin of the goods, but also that the registration of such a mark would endow its owner with an implied monopoly of all the colors of the spectrum. Leschen & Sons Rope Co. v. Broderick & Bascom Rope Co. (201 U. S. 166; 26 S. Ct. 425 ; 50 L. Ed. 710); Lufkin Rule Co. v. Master Rule Mfg. Co. (40 F. 2d 991 ; 17 C. C. P. A. Patents, 1227); In re Johns-Manville, Inc. (55 App. D. C. 142; 2 F. 2d 844); Samson Cordage Works v. Puritan Cordage Mills (6 Cir., 211 F. 603; L. R. A., 1915 F. 1107) ; In re Gotham Silk Hosiery Co., Inc. (5$7 App. D. C. 266 ; 20 F. 2d 282)."
In view of the foregoing, it is quite clear that the color yellow or of any other color is incapable of being a trade-mark unless such color or colors form part of a distinctive design which otherwise is capable of registration. It will be noted that even where registration of a design incorporating colors is permissible, no exclusive property right in the color is thereby obtained.
It is interesting to note in this connection that butter is not the only yellow food that is consumed by man. Yellow appears in many foods which man has consumed for years. For that matter, butter is not the only yellow fat that man has consumed. While some butter people like to talk about butter being mentioned in the Bible, an investigation into the historical facts discloses that after man domesticated the cow, he consumed cow's milk, but for some time did not make of such milk, butter for his own consumption. In fact, there is evi. dence to show that the first use made of butter was as a grease with which wrestlers in ancient times anointed their bodies so as to aid them in their athletic contests.
However, man did eat yellow fats other than butter, such as beef fats and chicken fat. These have been the subject of human consumption for many years. For that matter, when margarine was first made and sold in the 1870's, it was made exclusively from animal fats, and from such fats the margarine derived a natural yellow color.
Yellow margarine is not something which is new today. As already stated, it was first yellow naturally, and over the period of years some yellow margarine has been made and sold.
The witness from the Food and Drug Administration described very clearly how naturally yellow margarine was in pretty common use prior to 1931, and that the oleomargarine tax law was amended in 1931 to impose a 10-cents-perpound tax on naturally yellow margarine as well as artificially colored margarine, which, in turn, reduced the amount of yellow margarine made to a very small quantity.
Accordingly, history shows that butter has never had any exclusivity for the color yellow in the food field and not even in the fat field.
Upon consideration, it becomes apparent that this is in no way whatsoever a trade-mark point or one involving an exclusive right. It is simply a matter of color in foods which, in turn, automatically means that it comes within the provisions of the Federal Food, Drug, and Cosmetic Act.
As is known, the original Federal law in this field was the food and drug law of 1906. Starting in the 1930's, the Congress spent several years in a consideration of a revision of the food and drug law, which culminated in a very comprehensive measure enacted in 1938 and called the Federal Food, Drug, and Cosmetic Act.
This followed very extensive hearings in both Houses, lasting over a period of many years. The subject of the coloration of foods was fully considered, and the Congress acted upon it. We find the following provision in this act, being section 403 (k):
“SEC. 403. A food shall be deemed to be misbranded
“(k) If it bears or contains any artificial flavoring, artificial coloring, or chemical preservative, unless it bears labeling stating that fact: Provided, That to the extent that compliance with the requirements of this paragraph is impracticable, exemptions shall be established by regulations promulgated by the Administrator. The provisions of this paragraph and paragraph (g) and (i) with respect to artificial coloring shall not apply in the case of butter, cheese, or ice cream."
It is obvious, therefore, that Congress has enacted that color may be added to food—and with no limitations on the use of any particular color for any particular food-just as long as there is a label declaration that color has been added. As is obvious from this provision, the exemption originally procured from the Congress in 1923 with respect to butter was continued in this act.
Furthermore, under section 401 of the Federal Food, Drug, and Cosmetic Act, the food, oleomargarine, was standardized by the Federal Security Administrator and, as required by the act, he first conducted lengthy and extensive hearings. The oleomargarine standard was promulgated in 1941 and was one of the first standards of identity issued under the Federal Food, Drug, and Cosmetic Act. In the standard, which has the force and effect of law, the Administrator lists coloring as an optional ingredient. The butter interests were present at these hearings and noted their appearance. Obviously, the fact that in standardizing oleomargarine under the Federal Food, Drug, and Cosmetic Act, the Administrator lists coloring as a permitted ingredient is very clear and conclusive evidence that there is nothing false and misleading in having yellow oleomargarine and that it is in keeping with all proper considerations dealing with the manufacture, selling, and labeling of foods. Of course, under the act, as well as under the oleomargarine standard, when color is added to oleomargarine, the label must clearly and conspicuously declare the presence of added color.
MEMORANDUM ON THE USE OF THE COLOR YELLOW BY THE BUTTER INDUSTRY PRE
PARED BY THE NATIONAL COOPERATIVE MILK PRODUCERS FEDERATION FOR THE FINANCE COMMITTEE OF THE UNITED STATES SENATE
The chairman of the Senate Finance Committee has requested the National Cooperative Milk Producers Federation to submit this memorandum for the record in connection with the hearings on H. R. 2245.
In his indirect testimony before the Senate Finance Committee on May 18, 1948, John Brandt, president of the National Cooperative Milk Producers Federation, stated that the characteristic color of yellow is the trade-mark of the butter industry.
This was intended as a statement of a broad general principal and not as a reference to a trade-mark in the technical, legal connotation.
The butter industry has long been an entity in the field of business enterprise. This business, functionally, is a complex combination of human talent and industry, cooperative spirit of management and employees, machines and materials, patents, privileges, licenses, franchises, and advertising devices. However, the most important single component in the make-up of this business enterprise is