proprietary right in thé specific articles to which it is attached, while a general business trade-mark asserts no such claim and is intended to protect the owner of the trade-mark from fraud and imposition by other merchants who might otherwise deceive the public as to the identity of the manufacturer whose goods they were purchasing.

Difference in effect-Such trade-marks differ in effect, in that a specific trademark is a warning that the manufacturer claims some exclusive proprietary right in the article to which it is affixed and protects the manufacturer against infringement of such right, while the general or business trade-mark asserts merely the name and identity of the owner of the trade-mark and protects the public against purchasing other goods designed to be sold as his.

EXAMPLES OF TRADE-MARKS CLASSIFIED.

As examples of a general business trade-mark, I would cite: "In Er Seal," the trade-mark of the National Biscuit Co.

"Necco," the trade-mark of the New England Confectionery Co.

The trade-mark of the Gorham Manufacturing Co., the silversmiths of New York and Providence, consisting of three plaques combining an adaptation of. part of the old English "Hall Mark," an anchor and the letter "G."

"Kodak," the trade-mark of the Eastman Co.

As examples of specific trade-marks, I would cite:

"Gold Medal," the trade-mark of the Washburn Crosby Co. for flour.

"Bon Ami," the trade-mark applied to the well-known cleaning preparation. "Postum," the trade-mark applied to cereal coffee.

"Fatima," cigarettes.

"Ivory," soap.

The general business trade-mark of a pharmaceutical house used to indicate the origin of its products and not to assert any proprietary right in any special article manufactured or sold, is in reality a trade name. As such it stands for built up reputation; it is a link that connects the ultimate consumer with the manufacturer. It preserves the identity of merchandise, and, in carrying out this function, it is a device of inestimable value to the commercial world. Its use should be protected and encouraged; and the manufacturer should not be deprived of its advantages by measures of taxation which makes its use impossible.

VALUE OF GENERAL BUSINESS TRADE-MARKS.

A general business trade-mark asserts no claim of proprietary rights in the article to which it is affixed. It is only one way of announcing the identity of the manufacturer. It is a convenient and concise way of telling a purchaser that he is dealing with a commercial house with which he desires or intends to deal. Such trade-marks assume value to the vendor according to the reputation obtained for honesty, fair dealing, and excellence of product. It is a great injustice to deprive a business house of the benefit to be derived from its own reputation, from its continuity in business, or from the well-recognized quality of its products. The names of various business houses are synonyms for honesty and sincerity; and the value of a good reputation is an asset which is jealously protected by law. The law does not allow a man to steal his neighbor's business by falsely masquerading under his neighbor's name or trade-mark. The wrong perpetrated by such a fraud is just as much a wrong to the purchaser as it is to the pretended seller who is impersonated. The public relies, as it has a right to do, on the marks of identification which distinguish the products of one merchant or manufacturer from the products of another; and a theory of taxation which destroys the value or diminishes the use of general business trade-marks is a penalty for honesty and a premium established for insincerity and careless business,

THEORY OF EJUSDEM GENERIS AS APPLIED TO SECTION 600 (H).

First. As to the words, "or trade-mark": In the first part of the section the Congress has specified five classes of proprietary preparations, the manufacturer or producer of which claims: First, to have any private formula; second, to have secret or occult art for making, etc; third, has or claims exclusive right or title to making, etc.; fourth, which are prepared, vended, etc., under any letters patent; and fifth, which are prepared, vended, etc., under any trademark.

As the first four classes necessarily relate to preparations in which exclusive proprietary rights are possessed or claimed, under the theory of ejusden generis, the fifth class must also relate to preparations in which exclusive proprietary rights are possessed or claimed. Therefore, the words, "or trade-mark" as they appear in the section must relate to a specific trade-mark under which exclusive or proprietary rights in the preparations designated are possessed or claimed. The various particulars recited in the statute relate to such proprietary rights and any particular included in the list of specifications must be properly interpreted to refer to something of the same general character or kind as the other particulars which are grouped with it in the same class. It is not reasonable to suppose that the Congress intended to group together five classes of preparations, carefully define four classes which related to exclusive proprietary rights and then add a fifth class, including general medicinal products, thus subverting the purpose and meaning of all the language preceding and making the definition of all classes of proprietary remedies in idle ceremony. Unless the words "or trade-mark" refer to a specific trade-mark applied to a specific article or articles in which exclusive proprietary rights are possessed or claimed, the words would alter the whole intent of the section as otherwise expressed. The rest of the language in the section completely negatives the idea that the words, or trade-mark" were ever intended by the Congress to mean a general business trade-mark used for the purpose of identifying the maker or manu facturer.

Second. As to the words, "or as remedies or specifics," etc. In the latter part of the section the Congress has specified three classes of proprietary preparations which are held out or recommended: First, as proprietary medicines; second, as medicinal proprietary articles or preparations; and third, as remedies or specifics for any disease, etc.

The first two classes necessarily relate to preparations in which exclusive proprietary rights are possessed or claimed. Therefore, under the theory of ejusdem generis as just explained, the third class must relate to preparations in which exclusive proprietary rights are possessed or claimed. The arguments set forth as to the words, "or trade-mark," apply multandis to the words, "or as remedies or specifics,” etc.

Unless the words refer to a specific article or articles in which exclusive proprietary rights are possessed or claimed the words would alter the whole intent of the section as otherwise expressed. The rest of the language of the section completely negatives the idea that the words, “or as remedies or specifics," etc., were ever intended by the Congress to mean general medicinal products sold under medicinal labels setting forth well-known and scientifically recognized therapeutic indications.

RULINGS OF THE COMMISSIONER OF INTERNAL REVENUE.

The Commissioner of Internal Revenue has ruled, however: First. That the words, "or trade-mark" must be interpreted literally and in the broadest sense to include any trade-mark of any kind, general, business or specific, and that any medicinal products, whether proprietary medicinal articles or preparations, or general medicinal products, sold under any trade-mark are subject to the tax at present imposed.

Second. That the words, “or as remedies or specifics for any disease, diseases, or affection whatever affecting the human or animal body," must be interpreted literally and in the broadest sense to include any remedies sold under a label bearing any therapeutic indications, and that any medicinal products, whether proprietary medicinal articles or preparations or general medicinal products, Sold under such a label are subject to the tax at present imposed.

These rulings have practically abrogated the distinction between proprietary medicinal articles or preparations and general medicinal products.

It is assumed that the Congress meant and now means to tax under this section only proprietary medicinal articles or preparations and the suggestions offered are submitted on that assumption. If the Congress intended the words, "or trade-mark" to include only specific trade-marks and not to include general business trade-marks, otherwise known as trade names, or if the Congress intended the words, "or as remedies or specifics for any disease, diseases, or affection whatever affecting the human or animal body, to apply only to proprietary medicinal articles or preparations and if that intent is expressed in statutory language which in any way warrants the Commissioner of Internal Revenue in ruling that medicinal products sold under general business trade81608-18-16

marks or sold under labels bearing therapeutic indications are taxable within the scope of the language used, surely, in a general revision of the war revenue law, the opportunity presents itself to express the will and intent of the Congress in such language that it can not be misunderstood or misinterpreted either by the Commissioner of Internal Revenue or by declarants submitting themselves for taxation.

WORDS, “OR TRADE-MARK" NOT ESSENTIAL,

If the Congress mean and now means to tax only proprietary medicinal articles or preparations, the words, "or trade-mark" are entirely unnecessary in the section. Articles sold under a specific trade-mark asserting some claim of proprietary right are taxable under the other specifications; and the words, "or trade-mark used with that limitation add nothing to the language which goes before. There is no medicinal article or preparation capable of being sold under such a specific trade-mark which does not come within the four classes immediately preceding. A private specific trade-mark used on a special article or articles means that the manufacturer or producer claims either a private formula, or secret or occult art, or exclusive right or title to the making, or claims to act under letters patent. A specific trade-mark must mean one of the things already referred to in the preceding language or it would have no meaning, value or commercial worth. It is submitted that the imagination can not conceive of a medicinal preparation in any way justifying the use of a specific trade-mark which does not fall within one of the classes of proprietary remedies previously defined. If, therefore, the words, "or trade-mark" are not essential to secure the taxation of proprietary articles or preparations and as now included in the section merely lead to obscuring the distinction between specific trade-marks and the general business trade-marks, the words should be omitted from the section. Unless the Congress means to tax all medicinal products, the words are superfluous. If, on the other hand, the Congress means to tax only prietary medicinal articles or preparations, there is no reason why by the imposition of a prohibitive tax manufacturers should be debarred from the use of general business trade-marks, the identity and business value of which have been established by years of hard work and honest dealings. It has already been ruled that general medicinal products can be sold under labels bearing the legend, "Made by XYZ." It is submitted that the use of a general business trade-mark on wrappers and packages on articles of merchandise means nothing more, nor nothing less than, "made by XYZ." General business trade-marks are merely the guaranty of business reputation and assert no proprietary claim except the right of a business concern to its own name and reputation.

NATIONAL TRADE-MARKS UNDER SECTION 600 H.

Following the example set by Franch manufacturers and producers in adopting a collective trade-mark, Unis-France," there are already before the Congress two bills, the Sims national trade-mark bill" and "the Pomerene national trade-mark bill," both looking toward the establishment of a national trade-mark. If the words," or trade-mark" remain in section 600 h as revised, does the use of the national trade-mark subject to taxation all goods uttered, vended or exposed for sale under it?

If the Commissioner of Internal Revenut is right in his ruling that the words “or trade-mark" include every kind of trade-mark, how can we reach any other result?

The absurdity of such a situation merely serves to emphasize the intent of the Congress to tax only proprietary medicinal articles or preparations uttered, vended, or exposed for sale under a specific trade-mark asserting some proprietary right in the articles to which it is attached and further emphasizes the necessity for having the manifest intent of the Congress expressed in clear and explicit terms.

THE WORDS," OR AS REMEDIES OR SPECIFICS," ETC.

The words, "or as remedies or specifics," etc., are a survival from earlier revenue laws and as such are entirely obsolete in view of more recent legislation. Prior to the enactment of the pure food and drugs act, so-called, remedies, cures, and specifics abounded. The kidney remedies, consumption cures, and specifics for rheumatism with which we were familiar years ago are now a thing of the past, such designations being now unlawful.

If the Congress had intended to tax all remedies, using the word in its broad sense, it would have used apt language and would not have complicated the statute by such careful classification of proprietary medicinal articles or preparations. It is submitted that the Congress means to tax remedies, cures, and specifics of a proprietary nature, so far as the same may be saleable, if at all, under existing legislation and did not mean to tax all remedies.

The word "remedy" is a very broad word and is defined in Webster's International Dictionary as follows:

First. That which relieves or cures a disease; any medicine or application which puts an end to disease and restores health.

Second. That which corrects or counteracts an evil of any kind; a corrective; a counteractive preparation; cure.

The word remedy" therefore includes every conceivable article, intended or designed to cure or alleviate disease of any kind, if we use the word in its broad sense. Such a use of the word can not be reconciled with the intent of the Congress as evidenced by the rest of the language of section 600 h. Unless the Congress meant to tax medicines of all kinds, the words, "remedies or specifics" must be interpreted as referring only to remedies or specifics in which some proprietary right is claimed. The general language and tenor of section 600 h completely negatives, however, the idea that the Congress ever meant to tax general medicinal products including such everyday household remedies as sulphate of quinine, cascara, salicylate of soda, and a multitude of equally well-known medicinal agents. The words describe no new class and add nothing to any class previously described unless they refer to general medicinal products. If the words, "remedies or specifics" as used in section 600 h are means to apply only to proprietary medicinal articles or preparations, they are not longer necessary in the statute and are superfluous. If they include general medicinal products, as the Commissioner of Internal Revenue has ruled, they subvert the meaning of the rest of section 600 h, fail to express the will of the Congress and ought not to be retained. In either case they should be eliminated from the present revision of the war-revenue law.

THERAPEUTIC INDICATIONS.

The therapeutic indications ordinarily printed on medicinal labels are not mysterious nor occult nor do they assert any claim of proprietorship. They are merely the result of experience and serve to guide the mind and hand of the medical practitioner, of the nurse, and even of the patient himself in the treatment of disease. It is a strain upon the reasoning powers to comprehend how any claim of proprietorship can be gathered from a label, on which a medicinal formula is printed and which bears the legend. "Fever (for children)." Yet, such a label has been held by the Commissioner of Internal Revenue to be within the scope of the language of section 600 h.

The following labels would all seem to be within the ruling of the Commissioner of Internal Revenue as to therapeutic indications.

Conjunctivitis.-R acid boracie C. P., 2 gts. Zine sulpho carbolate. gr. Cholera infantum-Zine sulphocarbolate, 1-20 gr.; salol. 1-10 gr.; bismuth, subnitrate, 1-2 gr.; calomel, 1-60 gr.: pepsin, pure, 1-4 gr.

Cold laxative. Revised. Each tablet contains acetanilid. 2 grs.; hyoscyamus, 1-4 gr. ipecac. 1-10 gr.; atropine sulphate, 1-600 gr.; strychnine sulphate, 1-150 gr.: podophyllin, 1-10 gr.; cinchonidia sulphate. 1 gr.

Neuralgic headache-Acetanilid, 1 gr. morphine sulph., 1-50 gr.; sodium brom., 5 grs.; caffeine alkaloid, 1-4 gr.; hyoscyamus, 1-2 gr. Tonic. (For children.) Calcium phos.. 1-10 gr. Iron phosphate, 1-10 gr. One to two before meals, or four to six times daily. Rheumatic.-Resin guaiac, 3 grs.; fluid ext. poke root, 1 gr.; potass iodide, 2 grs.; colchicine, 1-100 gr.; digitalin, 1-100 gr.

Coryza compound, No. 4.-Dr. Kenyon. Revised. Each tablet contains: Camphor. 1-2 gr.; hyoscyamus, 1-30 gr.; quinine sulph., 1-2 gr.; atropine sulphate. 1-2000 gr.

Grip preferred.-Each tablet contains acetanilid 1-2 gr.; cinchonidia sulphate 11-2 grs.; strontium salicylate 1-2 gr.; tr. aconite 1900. 13-4 min.; capsicum, 1-60 gr.; ext. cascara 1 gr. Dose: 1 tablet every three hours, 2 at bedtime.

Elirir-Strontium Bromide Comp.-Revised. Constituents: Each fluid ounce contains alcohol about 5 per cent and 60 grs. of the combined bromides of potassium, sodium, ammonium, strontium, calcium, and lithium. Indications: Migraine epilespsy, uterine congestion, acute mania, alcoholism, etc.

Dose: One to two teaspoonfuls in water 3 times a day.

Fever. (For children.) Tinet. aconite. 1-10 m.; tinct. belladonna, 1-20 m.; tinct. bryonia, 1-20 m.; chocolate, q. s. (Strength U. S. P. 1890.)

Fluid Extract of Cascara Sagrada.—(Fluidextractum cascarae sagradae U. S. P. L. X). Contains alcohol 23 per cent. Made from the dried bark of the trunk and branches of Rhamnus purshiana, properly seasoned. Average dose-metric, 1 mil; apothecaries, 15 minims. Properties-An excellent laxative. Particularly indicated in habitual constipation.

EFFECT OF THE TWO OBJECTIONABLE PHRASES.

The 2 per cent tax substantially on gross sales of general medicinal products, exclusive of proprietaries, under the existing statute is oppressive to the manufacturers. A 10 per cent tax on such products can not be absorbed; and, if the tax is to be paid, the manufacturer must add the tax to his price list. This would transfer the burden either to the practicing physician or to the sick, on neither of whom such a tax should be allowed to fall. It is incredible that the Congress ever meant or means now to impose any additional and undue burden of taxation upon those suffering from illness and infirmity or upon the physicians who attempt to alleviate such suffering. Such a 10 per cent tax on gross sales, moreover, ought not to be passed on to the ultimate consumer. The doctors who dispense the ordinary remedies in the sick room ordinarily include the medicine in their regular fees and make no extra charge for it. They certainly ought not to be subjected to the tax and must protect themselves by additional charges.

A TAX ON GENERAL MEDICINAL PRODUCTS DEFEATS ITSELF.

Under the present statute, as interpreted by the rulings of the Commissioner of Internal Revenue, general medicinal products are subjected to the tax, if uttered under a general business trade-mark or under a label bearing any therapeutic indications. In order, therefore, to take general medicinal products out from under the operation of section 600 h, a pharmaceutical manufacturer must abandon the use of his trade name or symbol used as a general business trade-mark and must cease to publish any therapeutic indications on his labels. The alternative thus presented to the pharmaceutical manufacturer is not only unjust to them but is full of peril for the public. General business trade-marks ―really trade names-are important to the commercial world and should in every way be encouraged. Therapeutic indications are essential for the public safety and the convenience of doctors and nurses. Proper marks upon containers of medicinal agents are a necessary protection against error and misThe ordinary dictates of prudence and propriety call for such marks on a medicinal product as will identify in the shortest possible time the origin of the product, the name of the manufacturer and the therapeutic use of the product indicated by professional, and scientific experience. The loss of either of these safeguards would be a matter of grave public concern and a matter of peril to the public health.

use.

The Commissioner of Internal Revenue may be right in his rulings. If he is right the tax defeats itself. General medicinal products ought not to hear a 10 per cent tax. If the rulings of the Commissioner of Internal Revenue are correct the only way out of the difficulty under a statute containing the two objectionable and unnecessary phrases referred to above is to deprive the medical world, the commercial world and the general public of the manifest advantages derived from the use of general business trade-marks or symbols used as trade names and of the protection assured by setting out therapeutic indications on medicinal labels.

OBJECTIONAL PHRASES TO BE STRICKEN OUT.

It is therefore submitted that the words "or trade-mark" and the later words, or as remedies or specifics for any disease, diseases, or affection whatever affecting the human or animal body" should be stricken from section 600 h or from any proposed revision thereof.

SUMMARY.

It is therefore submitted-

First. That the Congress intended to tax under section 600 h. only proprietary medicinal articles or preparations.