The President: The Committee on Trade Marks is next in order. I believe the chairman of that committee has a report to make. (See the Report in the Appendix.) Lester L. Bond, of Illinois: I move, Mr. Chairman, that the report of the committee be adopted as read, and that the committee be continued with instructions to take such action as may be necessary to secure the passage by Congress of the bill appended to the report. E. B. Sherman, of Illinois: I second that motion. Francis Forbes, of New York: Before the Association acts upon that motion, it should know that there is a Commission existing, appointed by the President of the United States, to draft a trade mark law. That Commission has not yet made its report, but it will probably do so at the next session of Congress. Such distinguished gentlemen as Judge Grosscup, of Chicago, and Mr. Greeley, of the Patent Office, are on that Commission. It seems to me that this Association, if it desires any legislation on the subject of trade marks passed at the next session of Congress, might well wait until that Commission has reported. Lester L. Bond: I am well aware of the fact that a Commission has been appointed to look after this matter and that it is composed of very eminent gentlemen. At the same time I think the committee of this Association might work in harmony with that Commission. There need be no conflict between them. Francis Forbes : The motion is, that this Association recommend the particular bill submitted by the committee. To recommend a particular bill is an exceedingly important action for the Association to take. I have not yet seen the bill and no copies are here. E. B. Sherman : The Committee appointed by this Association and to whose report we have just listened, is composed of gentlemen who are very eminent in the branch of the law relating to trade marks.. The members of the Commission appointed by the President are also men equally familiar with that subject. Now, the intention of our committee was not to antagonize the Commission, but to supplement their efforts. The committee has made a careful study of this subject, and it seems to me there is no danger of any antagonism between it and the Commission. I am sure the Commission will gladly receive any suggestions made by the committee of this Association. Arthur Steuart, of Maryland: If I may be permitted to say a word, the committee that prepared this bill was entirely familiar with the existence of the Commission and entirely in sympathy with its work, but we know very well that any bill that is passed on this subject must be threshed out before the committees of Congress, and this committee thought it better that they should give to this subject the result of their best experience and formulate a bill which they could submit to this Association for its approval, and if it received the endorsement of this Association, then submit it to Congress. The Commission that has been appointed will study the subject and formulate a bill, I suppose, although at the time this Committee was first appointed the chairman of the Commission told me they did not propose to frame a bill covering the particular ground embraced within this bill. If they have changed their plans, then some little change in their report may exist; but that ought not to alter the action to be taken by this Association, and if this bill is a proper one, if this Association has confidence in its committee, then let this bill go to Congress with the endorsement of this Association. Edward Q. Keasbey, of New Jersey: It seems to me, gentlemen, that this Association ought to recognize the existence of this Commission. I do not know exactly the form of this resolution and I am not prepared to vote for it as it stands. This is a subject of a great deal of importance, and it was set down on the programme for this afternoon, and therefore I move that the further consideration of this matter be postponed until this afternoon's session. The motion postponing consideration till the afternoon session was seconded and was adopted. The Association then adjourned until 2.30 o'clock P. M. AFTERNOON SESSION. Tuesday, August 29, 1899, 2.30 P. M. The Acting President, Charles F. Manderson, of Nebraska, called the meeting to order. The President: We are to have the pleasure of hearing a paper read on the subject of "State Punishment of Crime," and I have great honor, as well as pleasure, in introducing Sir William R. Kennedy, a Judge of the High Court of Justice of England. Mr. Justice Kennedy then read his paper. (See the Appendix.) E. T. Lovatt, of New York: I move a rising vote of thanks to the distinguished gentleman who has read this very able paper in our presence. Tho motion was seconded and was adopted by a rising vote. Sir William R. Kennedy: Mr. Chairman, ladies and gentlemen, I thank you cordially for the great pleasure your courtesy gives me. Martin Dewey Follett, of Ohio: Mr. Chairman, will you allow a word or two when you come to the report of the Committee on Parole and Indeterminate Sentences of Prisoners, as the distinguished speaker referred in his paper to the experiment in this country in that regard. The Chairman of that Committee is now in England studying this very subject. It has been said that prison reform would never come from the lawyers, but when this report comes in it will be proved that this great reform has come from lawyers. The President: The Association will now resume the consideration of the pending business. The report of the Committee on Trade Marks having been received, it was moved by Mr. Bond, of Illinois, that the report of the committee as read be adopted, and the committee continued, with instructions to take such action as might be necessary to secure the passage by Congress of the bill appended to the report. That motion is now before. the house. Francis Forbes, of New York: Mr. Chairman and gentlemen of the Association. Since recess I have had the opportunity of reading the bill, which it is proposed to approve, and which I see by the note at the bottom of page 4 was introduced in the House of Representatives, May 6th, 1897, by Mr. Hicks, referred to the Committee on Patents and ordered to be printed. It was introduced in the Senate, June 20th, 1898, by Mr. Platt, of Connecticut, referred to the Committee on Patents and ordered to be printed. Therefore it does not seem to be a new measure. This bill, if properly considered by this body, must be considered in connection with these facts. There are two classes or kinds of registration of trade marks, as determined by their effects. One is where the registration is attributive of property in a mark, and the other where the registration is merely. declaratory of a claim to property in a mark. This distinction is of vital importance and of the very first rank. In countries like Germany, for example, where the registration and not user creates the right, an American mark not already registered there may be taken to the registration office by a stranger to the mark and it will be registered to him although he may have used it only for a day, and when registered all claims by the first user to that mark will be extinguished. The registration is said to be attributive of property because it gives the right. A mere bureau officer passes upon the question whether the mark is, or is not, registrable and therefore a good trade mark. In France registration is merely declaratory of a claim of property. A person cannot bring a suit unless he has registered his mark in advance in the proper office. It is received without question, and there is virtually no examination. Whenever the mark is infringed the court determines whether or not it is a lawful trade mark. They are recog These distinctions are very important. nized and have been debated the world over. They are not known here on account of our procedure under the common We recognize the first user as entitled to the trade mark and registration is optional and declaratory merely. law. By this bill we propose a change from a registration declaratory of property in a mark, as now, to a registration which shall be for practical purposes attributive of property in a mark. At least, that is the way I read it. Section 3, Page 6 says: "That if upon examination it shall appear that the alleged trade mark for any reason whatever does not constitute a proper trade mark, registration shall be refused,' * * that is, the Patent Office can pass upon the question of whether it is a trade mark or not. If you turn to Section "That in an application 5, page 8, you will find that it says: for such registration the Commissioner of Patents shall decide the presumptive lawfulness of claim to the alleged trade mark." In the existing law the meaning of these words is disputed, but in this bill they mean that the Commissioner shall decide, as in the case of a patent. Arthur Steuart: Not at all. Francis Forbes : Well, it reads so to me. The Commisioner of Patents has decided that under the language in the present law he has the |