ered as registered also in the other States of the Union." You say any trade-mark duly registered in any international bureau or office created or recognized by virtue of a treaty or convention duly ratified by the Government of the United States of America, by and with the advice and consent of the Senate thereof, and proclaimed by the President to be in full force and effect, shall be considered as a trademark for which application for registration," etc. This article 2 of the treaty does not require it to be registered in any international bureau before it is entitled to the rights.

Mr. CARTER. It says, "shall be considered as registered," and then "In order to enjoy the benefit of the foregoing, the manufacturer," etc., must obtain registry in the international bureau.

Senator JONES. I know. But is says "In order to enjoy the benefit of the foregoing," but the first provision provides for registration. Of course it provides that he must pay certain expenses in order to enjoy the benefits of registration.

Mr. CARTER. At the end of this clause it says: "Which sum shall cover all the expenses of both bureaus for the international registration."

Senator JONES. That does not say it must be registered. You may infer that is true, but the only registration referred to is registration in one of the signatory States. Then you have over here in Article 12 that the international bureau shall have the following duties: "To keep a register of the certificates of ownership of trade-marks issued by any of the signatory States." That is all right. And "collect such reports," etc. But the treaty requires us to recognize any mark duly registered in one of the signatory States.

Mr. CARTER. Provided he

Senator JONES (interposing). Where is that provision?

Mr. CARTER. Provided he complied with the formalities it results in international registration.

Senator LENROOT. Not required. Where does it require international registration in the treaty?

Mr. CARTER. The requirement is on the international bureau, which, when they receive $50, must register.

Senator LENROOT. Oh, no. I was speaking of the legal form of registration—that is, really communicating to the various States the registration.

The CHAIRMAN. It says: "In order to enjoy the benefit of the foregoing."

Senator LENROOT. Just to pay the $50, that is all; he gets the protection upon the payment of $50 whether the international bureau ever forwards it to a State or not.

Mr. CARTER. The international registration-what do you mean by that "international registration?

Senator JONES. What do you mean by it? Where is the provision in the treaty that requires

Mr. CARTER (interposing). I mean when a man has registered a trade-mark in his own country, if he then forwards $50, plus the proper papers, which will be decided by the regulations, to this international bureau they will register and grant him

Senator JONES (interposing). It does not say they must forward. Mr. CARTER. What else can it mean?

Senator JONES. It says he must pay $50.

That covers expenses.

We can not add to or take from this treaty unless we want to abrogate it.

The CHAIRMAN. Then it provides what the duties of this international bureau shall be.

Senator JONES. But notice article 3 again:

The deposit of a trade-mark in one of the signatory States produces in favor of the depositor a right of priority for a period of six months, so as to enable the depositor to make the deposit in the other States.

There is nothing there about your international bureau.

Senator NELSON. Of course, this treaty has been ratified and we can not modify the treaty, and we do not attempt to do it by this bill; and even if we did attempt it, it would not be binding. We can not go outside the provisos of the treaty.

Senator JONES. Why do we not use the language in this section 1 that is used in this article 2 of the treaty? If we want to carry out the treaty, it seems to me we ought to use that language.

The CHAIRMAN. That is the construction they put on it.

Senator JONES. It does not seem to me we ought to put the construction in statutory works. We ought to use the language of the treaty, and then the construction will be given to the statute the same as it is given to the treaty. But I wanted to get at why you did provide that when the treaty provides otherwise.

Mr. CARTER. The more you study this convention, the more mixed you will find it. It was a convention that was agreed to by 12 or 14 nations at a sitting of a few days on a very big subject, and naturally they could not go into very great refinements of procedure, etc. They tell us, in amplification of the thing, that the original document that they considered was framed by Mr. Moore, and Mr. Moore tells us that the document he framed was modeled very closely on the lines of the Berne convention. I have a copy of the Berne convention, and I would like to read to you one article of it.

Senator JONES. It is not a question of convention; it is a question of statute that we propose to enact.

Mr. CARTER. The statute must be decided by how you interpret the convention, and I am trying to interpret the convention in the light of the information we have concerning its framing. Mr. Moore tells us that he based it on the Berne convention, and the convention tells us this was based on Mr. Moore's document. Article 5 of the Berne convention, which was inserted later on, was not in the original convention of Berne, but was inserted later on, and is as follows:

In the countries where their legislation authorizes it, the administration to which the international bureau shall give notice of the registration of a mark, shall have the power to declare that protection may not be granted to that mark in their territory. Such a refusal shall be opposed only under the conditions which may be applied by virtue of the general convention, to a mark filed for national registration..

Senator JONES. Let me call your attention to this, in article 12, as construing article 2. Article 2 says:

In order to get a benefit a man must pay $50; he must pay that to some representative of the State where he makes registration, not to the international bureau at all.

Mr. CARTER. I do not think that is stated there.

Senator JONES. Notice, then, article 12:

The Governments of said States shall send to the international American bureau

That is, a different bureau

Mr. CARTER. That is the same thing.

Senator JONES (continuing):

their official publications which contain the announcements of the registrations of trade-marks, and commercial names, and the grants of patents and privileges as well as the judgments rendered by the respective courts concerning the invalidity of trade-marks and patents.

And whatever it does the $50 is to pay part of the expenses of doing that. A man does not lose his rights and benefits according to this, and when he pays $50 if the Government should fail to send a report to this bureau, he has protected his rights when he pays $50 to the representatives of his Government and not to the international bureau.

Mr. CARTER. I do not think you can find any language in the convention which indicates where he shall pay his $50.

Senator JONES. There should be only one representative that he should pay, and that should be the representative where registering. Mr. CARTER. We have taken the other construction, making the international registration depending on his own acts and not on the acts of his Government. In other words, a man may register in this country and not care about whether he gets registered in South America. Why should he have to have his mark considered under this convention?

Senator JONES. Why do you require the States to send a report? Mr. CARTER. That is a matter of record that they would send to official gazettes, etc.

Senator JONES. Does the State Department construe this to mean that the man who pays this pays to the international bureau and not to the representative of the State in which he has registered?

Mr. CARTER. It may be construed either way.

Senator JONES. How does the State Department construe it?

Mr. CARTER. They sat in the convention and approved the draft finally presented.

Senator JONES. We should have their construction. They can send somebody up here to give us their views about it.

The CHAIRMAN. The effect of section 1 is to accomplish what Mr. Carter has said. Section 2 of the act refers to the application, and you propose to add to that the language on page 2?

Mr. CARTER. The effect of that will be that each of these marks, as we understand it, when it is internationally registered in this bureau at Havana, for instance, will then be communicated to our Patent Office, and our Patent Office will treat that mark as a mark for which application had been properly made under our laws and the fees paid, and they will proceed to examine to see if it complies with our law and if it is anticipated by marks already registered. If they find it is all right they grant a certificate of registration. If they find it is not, they will refuse to recognize it as a mark registered in this country, and they will so advise the Cuban bureau, which will then advise the applicant.

That is what we intend to provide for by section 1 of this bill.

The CHAIRMAN. Then, section 2?

Mr. CARTER. Section 2 modified our present provision providing for priority in connection with applications to bring it up to six months instead of four, as at present. While this convention provides for six months priority in article 3, our present law provides for only four months priority.

We have also inserted in this section the "International Bureau or Office," which is not in the law at present. So that a man has six months after his application in the original countries within which to file his application here or in the international bureau, and things that happen in that six months will not prejudice his application in any way. A provision of that sort is already in operation in the international convention to which we are a party and is recognized by the Patent Office now, and this merely extends the time to six months in order to give effect to article 3 of this convention.

The CHAIRMAN. Section 3 refers to what?

Mr. CARTER. Section 3 refers to article 9 of the convention, which provides for cancellation of certain registrations in signatory countries. Our own cancellation section is section 13 of the act, and it seems necessary to make a slight modification there to include all of the various clauses of this article 9, which are recognized as proper grounds for cancellation. We have inserted the word "exclusive " in line 17 of page 3 of the bill, and the word "or since" in line 18. Otherwise the section is as it always has been.

The CHAIRMAN. Those words are inserted in pursuance of article 9 of the convention?

Mr. CARTER. Yes.

Senator NELSON. I find nothing in this treaty that gives the interpretation you claim to filing it with this international bureau. Nowhere in this treaty is there provision for filing trade-marks in this international bureau which shall be binding and effective in any country, and the treaty all along contemplates it must be filed with one of these countries and not with this bureau.

Mr. CARTER. That was the point the Senator raised a moment ago in connection with article 2. We interpreted the last words of article 2, on page 5, to provide for international registration in the bureau.

Senator NELSON. Yes; it does.

Senator LENROOT. No international registration.

Mr. CARTER. Yes.

Senator LENROOT. With the bureau?

Mr. CARTER. In the bureaus at Habana and Rio.

Senator NELSON. The filing with this international bureau is not sufficient under this treaty?

Mr. CARTER. One must first file in his own country-register his mark in his own country.

Senator NELSON. No; he must file it in the country where he expects to have the benefit of it. For instance, if a man wants the benefit of it in Brazil he must file it in Brazil.

Mr. CARTER. Oh, no. That is just what this convention is doing away with, the necessity of registering it in the country in which you are interested.

Senator NELSON. Will you point it out? I can not find it.

Mr. CARTER. Article 2 provides that a mark duly registered in one of the States shall be considered registered in others, provided certain formalities are complied with.

Senator NELSON. It must be registered in one of the States, but

แ one of the States" is not this bureau.

Mr. CARTER. I say, a man first registers in his own country and then in the international bureau, and then he gets protection in all the other States.

Senator LENROOT. Where do you get that construction?

Mr. CARTER. I have just been trying to explain it.

Senator LENROOT. You said you thought this provided in the second article for registration with the bureau.

Mr. CARTER. If you will read the last words of article 2, "which sum shall cover all the expenses of both bureaus for the international registration in all the signatory States.'

Senator LENROOT. Does not that mean merely that the bureau undertakes then to secure not the registration but the recognition of the registration in all the States that are parties to the convention?

Mr. CARTER. I do not think we can interpret it that way. It specifically says, "international registration."

Senator LENROOT. Does not that mean registration in all the other nations that are parties?

Mr. CARTER. It says, "expenses of both bureaus."

Senator LENROOT. That would be true; some of these would be one bureau and some another, would they not?

Mr. CARTER. Yes.

Senator LENROOT. I call your attention to the top of page 9, as to the functions of the international bureau: "1. To keep a register of the certificates of ownership of trade-mark issued by any of the signatory States." That simply requires that they shall keep a register of the trade-marks issued by any of the States bound by this treaty. Next, "2. To collect such reports," etc., and "3. To encourage the study," etc.

Senator JONES. Aid the Governments to investigate the cases where the trade-marks have failed to obtain recognition, and all that. Senator NELSON. I can find nothing in this treaty that gives it the effect that I understood you from the beginning, and that is, the filing of the trade-mark with this international bureau is equivalent. to filing in all the countries bound by the treaty.

Senator RANSDELL. That is the first section of article 2.

The CHAIRMAN. They state that is the construction, and they wanted to put it into the act.

Senator RANSDELL. The first section of article 2 says: Any mark registered here would be considered as registered in the other States to the convention.

Senator LENROOT. That is true, but not with the bureau.

Senator RANSDELL. Then it goes on in the next paragraph of that section to intimate, but it does not say it in as plain language as you would have said it, as you would have written it, Senator-but by inference it says so.

Senator LENROOT. I would not think so, when you come to read what records shall be kept by the bureau.

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