2nd Parliament · 2nd Session
Mr. Speaker took the chair at 2.30 p.m., and read prayers.
page 5851
– The honorable member for Wide Bay!, who is the deputy leader of the Labour Party, is reported in the Sydney Morning Herald of yesterday to have stated, at a meeting held at Hurstville on Saturday, that -
The people should have the right to veto any laws that might be challenged by a large majority.
In view of that statement, can the Prime Minister see his way to postpone the consideration of the trade union label provisions of the Trade Marks Bill until after the general election?
– I have not seen the report, and do not know whether it correctlyrepresents what the honorable member said ; but, when I see it, shall pay the same careful regard to it that the honorable member has given.
page 5851
– Can the Postmaster-General see his way to reduce the cost of delivering private mail bags throughout the Commonwealth?
– The question is now engaging the attention of the Department, and I hope to have some definite information on the subject in the course of two or three weeks.
page 5851
– I understand that there are at least two kinds of telephone used in the public bureaux, and that in using one kind 3d. must be placed in the slot before the bell is rung; while, if that is done in using the other kind, another 3d. must be paid after the exchange has been called, so that the public is frequently victimized. Will the Postmaster-General cause an inquiry to be instituted as to the practicability of making the system uniform?
– I shall be very pleased to do so. The Department has no desire to make any person pay twice.
page 5851
asked the Prime Minister, upon notice -
– The answers to the honorable member’s questions are as follow: -
page 5851
In Committee (Consideration resumed from 14th November, vide page 51 15):
Clause 3 -
This Act is divided as follows : - ….
Part VII. - Trade Union Marks.
Amendment (by Mr. Isaacs) again proposed -
That the words “Trade Union Marks” be left out.
– I think that it would be more convenient, and might conduce to expedition, to postpone this clause, and have the general debate on the trade union label provisions, either in connexion with the definition clause, or later on.
– I suggested that course at an early stage of the debate, but some honorable members would not agree to it.
Amendment agreed to.
– The clause having been amended, cannot now be postponed ; but I do not intend to ask the Committee to insert at this stage any words in place of those which have been left out. I desire that the clause may be agreed to as it stands, with a view to its recommittal later on.
Clause, as amended, agreed to.
Clause 4 -
In this Act, except where otherwise clearly intended - “ The Court “ means the High Court or the Supreme Court of the State in which the Trade Marks Office is situate or a Justice or Judge thereof. “The Law Officer” means the AttorneyGeneral or Crown Solicitor of the Commonwealth.
Person “ and “Applicant “ include a body corporate and firm. “ The Register “ means the Register of Trade Marks under this Act. “ The Registrar “ means the Registrar of Trade Marks. “ State Trade Marks Act “ means any State Act relating to the Registration of Trade Marks. “ This Act “ includes all regulations made thereunder.
– There are two or three matters to which I should like to draw attention in connexion with this clause. In the first place, I would point out that the word “court” is defined to mean -
The High Court or the Supreme Court of the State in which the Trade Marks Office is situate.
That definition confines appeals to the High Court and to the Supreme Court of the State in which the Trade Marks Office is, which is the State where the Seat of Government is. Therefore, an appeal from a decision of the Registrar in Western Australia would have to be made either to the High Court or to the Supreme Court of Victoria.
– I think that the definition had better remain as it is.
– I shall not move any amendment in that part of the definition at the present time. I think, however, that there should be inserted in this clause a definition, which, for a reason which has not been explained, has been omitted. The Minister in charge of a Bill should be perfectly candid as regards the scope of the measure. The Committee looks to him for guidance. If a definition which appears in the English legislation, upon which this Bill is professedly based, has been left out, we should be told why it has been left out. I find, however, that a definition which appeared in Mr, Moulton’s Bill of 1904, which was largely drawn upon by the draftsman of this measure, and has been enacted in the Act which comes into operation on the 1st April, 1906, does not appear in the Bill. If that definition had been adopted by the draftsman, the trade union label provisions could not come within the scope of the measure, so that it appears to me that the omission was deliberate.
– Was the definition in the Bill introduced by the Watson Administration? That Bill did not contain the trade union label provisions.
– I do not say that the AttorneyGeneral is responsible for the omission. He was not the draftsman of the measure.
– As there was then no intention to insert the trade union label provisions, the omission could not have been made for the purpose suggested.
– I am merely pointing out that the draftsman has deliberately omitted a definition which appears in the English legislation, and I assume that, being a man of ability, he knew what he was doing. As the Bill professedly follows the English legislation on the subject, the significance of the definition to which I refer must have been known. It is somewhat curious, therefore, seeingthat it would have involved a’ limitation of the scope of the measure, which would have excluded the trade union label provisions, that it has been left out. I do not say who is to blame. I merely mention the fact, and leave honorable members to draw their own conclusions.
– The attention of the Committee has not been drawn to the omission.
– I do not remember that the Attorney-General mentioned this omis- sion from the Bill. Perhaps it would! be as well to remind honorable members of the real object of trade marks, because that question will affect the constitutionality of this Bill, if it ever becomes law. I do not wish to repeat my former arguments at any length, but I should like to direct attention to the fact that, according to judicial decisions, the object of trade marks is to indicate that the registered proprietor of a trade mark is such by virtue of manufacture, selection, certification, dealing with or offering for sale. Sebastian says that a trade mark is - both a sign of the quality of the article, and an assurance to the public that it is the genuine product of his manufacture.
So that by virtue of the fact that it is the registered proprietor’s trade mark, the public may assume that the goods are of a certain quality and finish. No such assumption could be based on a trade union label. I do not say that the work turned out by union workmen may not be of a very excellent character. The fact that they are paid higher wages should insure better work, because, as a rule, the better the wages, the more satisfactory the product of the workmen. The union label would not necessarily indicate anything so far as quality or finish are concerned, whereas the object of the trade mark is to afford these guarantees to the public.
– The trade mark does not always indicate “the quality or finish of the goods.
– The quality cannot be indicated on the trade mark itself, but its object is to show that the goods are the product of a particular manufacturer or trader whose business standing as one who has always turned out goods of firstclass finish and quality gives some assurance to the public that they are getting value for their money. No such guarantee can be given by a union label. All that is conveyed is that the goods are made bv workmen who are members of the trade union. The employer could have no right to a trade mark, except for the purposes I have indicated.
– Trade marks can be obtained without inquiring as. to the use to which they are to be put.
– -That would be possible under the Bill.
– They can be obtained as I suggest at present under State legislation.
– I beg the honorable member’s pardon. He must know more than I do upon that point if his statement be correct.
– I desire to move an amendment prior to that which the honorable and learned member has indicated his intention! of submitting.
– I alio have one or two amendments to propose.
– Then I shall defer moving my amendment for the present.
– I wish to direct the attention of the AttorneyGeneral to the terminology of the clause, which’ may prove offensive to the. Judges of the States Supreme Courts. The insertion of “the words “or Judge” in the first paragraph of the clause, makes a distinction between Justices of the High Court and Judges of the Supreme Courts. . The Attorney-General knows that the Supreme Court Justices are so termed, and I should be satisfied if the words “ or Judge “ were left out. There was no intention on the part of this Parliament, when creating the High Court, to deprive the Supreme Court Justices of any of their titles. I know that their Honours appreciate the use of the word ^’Justice” instead of “Judge.” The AttorneyGeneral is not to blame in this matter, because the same wording was1 adopted when the Bill was submitted to Parliament last year. I move -
That the words “ or Judge,” line 6; be omitted.
– I am thoroughly in accord with the intention of the honorable and learned member, and I think that some such amendment should be made. I would point out, however, that the language follows that’ adopted in the Judiciary and other Acts of this Parliament.
– Not in all of them, because in several cases the word “ Judge “ was struck out at mv instance.
– I do not know whether the meaning of the word “ thereof “ would be perfectly clear, if the clause were amended as proposed, but apparently it would. I am prepared to agree to the amendment at present, with a view to considering the matter afterwards.
Amendment agreed to.
Mr. ISAACS (Indi- Attorney-General). - I move -
That the words “and ‘Applicant’ include a Body corporate and firm,” lines 10 and 11, be left out, with a view to inserting in lieu thereof the words “ includes a body corporate and a firm.”
– Does not the Acts Interpretation Act provide for that?
– Yes, but over and over again we have included definitions in Acts in order to prevent trouble. It is necessary to adopt the amended definition I propose, because under the Acts Interpretation Act whilst “ person “ would include a body corporate it would not include a firm. If a particular firm wished to register a trade mark the mere use of the word “person “ would not give them that right.
Amendment agreed to.
Mr. GLYNN (Angas). - I now desire to move the amendment which I have indicated my intention of submitting.
– I understand that the honorable and learned member wishes to insert a definition of “trade mark.”
– Yes.
– Would it not be better to insert the definition in its proper alphabetical order in the clause ?
– I think not. I think we ought to define trade mark before we define the class of trade mark with which we are proposing to deal. That is what is done in English legislation. When I found that the draftsman had adopted another method I did not at first propose to interfere with it, but I have since recognised the importance of moving my amendment out of its alphabetical order. I have already quoted one or two definitions of “ trade mark,” in order to show what objects such’ marks are intended to achieve. I now wish to refer to the judgment of Lord Esher in the case of Richards v. Butcher, 1891, II. Chancery Div., page 543-
You use the thing as a trade mark if you use it in business, or, as it is often said, in the market, as a mark to denote your goods, and to distinguish them from the goods of any one else.
Is it to be supposed that the union label would effect this purpose? I understand that the measure is not intended to shift property, but to indicate where the property really is. According to Lord Esher the primary object of a trade mark is to indicate certain articles as. the goods of the owner of the trade mark. Then Kerly says -
The protection afforded to trade marks has for its object the protection of trade only.
That is significant -
In Batt and Co. v. Dunnett, Lord Halsbury, in the course of the argument, observed : The Trade Marks Acts are not for copyright in marks; they are to protect trade marks. If you have no goods you are claiming copyright only, you are not claiming for the purpose of protecting your trade.
When you begin to dissociate the ownership of the goods in the sense used from the ownership of the mark you are merely claiming copyright. Thus, if the union label provisions mean anything they will amount to a claim of copyright as against: other persons.
– Does the honorable and learned member argue that provision for union labels should be made in the Copy-, right Bill?
– They would be objected to anywhere; if they were provided for in that Bill they would still be objected to.
– I think that it would be very proper to question the constitutionality of making any such provision in that Bill. But in England, where the question of constitutionality could not arise, Lord Halsbury ‘s dictum to the effect that a label is not necessarily a trade mark cannot be questioned. But what is claimed in this case is virtually a copyright. Under the Imperial Trade Marks Act of 1905, if a person be an expert examiner of goods, he can register his trade mark. That is the only exception made by recent English legislation.
– Why not omit from this Bill the union label provisions?
– I am endeavouring to bring the Bill into harmony with the latest English legislation. The earlier English Acts dealing with this subject contained no definitions. Itis true that there was a definition in one Act which was incorporated with the Merchandise Marks Act of 1887, only for the purposes of that Act, but there was no definition in what are known as the Registration Acts, and the’ measure under consideration is, in essence, a Registration Bill. The English Bill of 1904, However, did include a well-drawn definition, which is embodied in the Act of 1905. That definition, I think, was suggested after an examination of the Bill by experts. I believe that a Committee of the House of Commons inquired into this matter in 1904-5, so that the amendments made by recent legislation were made with great deliberation–
– And as the result of the best legal thought on the matter.
– There is no doubt of that. I have examined the evidence which . was taken by that Committee, and I can see that the amendments which have been made in the earlier English legislation have been deliberately made with the object of bringing the trade marks legislation of the old country right up to date. Honorable members, I think, will recognise the effect of omitting from this Bill the definition which I propose to insert, and which reads -
A “ trade mark “ shall mean a mark used or proposed to be used upon or in connexion with goods for the purpose of indicating that They are the goods of the proprietor of such trade mark, by virtue of manufacture, selection, and certification dealing with or offering for sale.
I say that the effect of inserting that definition will be to confine -the Bill to its proper scope, so that it shall deal only with trade marks which are truly such, in that they indicate, as I have already mentioned, ownership of goods, in the sense defined, or expert examination of goods. The omission of this definition may have been accidental. But when one looks at other portions of a Bill,, and finds that a similar accident has led to a like result there, one is naturally inclined to be a little suspicious of the object which the draftsman had in view. For instance, clause 16, which deals with the essential particulars of trade marks, provides -
The essential- particulars of a registrable trade mark shall be one or more of the following particulars : -
A distinctive device, mark, brand, heading, label, or ticket.
Now, the words “ mark, brand, heading, label, or ticket,” are not to be found in the latest English legislation!, though undoubtedly they are contained in section 64 of the English Act of 1888. Consequently I- am at least entitled to say that this Bill is not up to date. Some people would be inclined to surmise that these words have been inserted - ignoring the later English legislation - in order to fit in with the union label clause.
– Does the honorable and learned member suggest that?
– I said that some people might surmise that. These words - which have been left out of the English Acthave been inserted, but to compensate foi the words that have been inserted the draftsman has omitted a definition of “distinctive” marks.
– Does the honorable and learned member say that the words “ label “ and “ ticket “ are left out of the latest English Act?
– Yes ; I think I can show the honorable and learned gentleman that.
– Will the honorable and learned member look at the interpretation section of the English Act?
– If the Attorney-General will allow me, I have already given one definition from that section.
– The honorable and learned member’s statement is quite wrong,.
– Perhaps it is ; and if so, it is the duty of the Attorney-General to set me right. However, I intend to deal with the points as they present themselves to me. I am referring now to the essential particulars of trade marks, and the Attorney-General is alluding to the definition of “ mark,” in the interpretation section of the English Act. I say that the word “ distinctive “ is not included in that Act as a special definition of distinctive mark.
– The honorable and learned member stated that the words “ label “ and “ ticket “ had been left out of the English Act.
– The word “ distinctive,” as it is used in the English Act, accomplishes practically the same result as does the definition of trade mark in this Bill. It indicates that the proprietor of a distinctive mark is also the proprietor of the goods. The definition is not inserted in the English Act amongst the general definitions, but it is specially included in section 9 which deals with the essential particulars of trade marks, and which reads -
For the purposes of this section “ distinctive “ shall mean adapted to distinguish the goods of the proprietor of the trade mark from those of other persons.
My argument is that in the union label clauses this special distinction is omitted for the benefit of a particular section.
– There is no reason why it should be designed to exclude a particular section.
– In clause 23, the draftsman has adopted the provision which is contained in the English Act. That clause reads -
A trade mark must be registered in respect of particular goods or classes of goods as prescribed.
The Attorney-General, however, proposes to substitute “ may “ for “ must.” I should like to know the reason for this alteration.
– I do not think there is any difference between the two .words.
– When we find that all these amendments conduce to the same end, and practically render unnecessary the union label provisions of the Bill - because the measure, as drafted, will attain the end in view without them - we are naturally suspicious of the object of the draftsman in modifying the Bill, so that it does not accord with the latest English legislation upon the subject.
– Is there any reason why we should slavishly follow Englishmade legislation?
– No, except that we have been assured that it is quite up to date. I say that in this Bill we shall practically legalize the union label without the special clauses to be subsequently moved. The measure, in -the ‘form in which it has been modified by the draftsman, covers a wider scope than should be covered by a Trades Marks Bill. I wish to confine the measure to its proper scope, and to make its provisions constitutional.
– The honorable and learned member wishes to make its provisions operate to the exclusion of a special class.
– That sort of ad ca0.tandum argument goes for naught. This Bill will not confer, upon th*e employer any special privilege.
– It will confer a special privilege on the employer under the protection of the State.
– The right to register a trade mark will be made reciprocal by the amendments. If they are defeated, the employer will be in no better a position than the employed
– Does the honorable and learned member say that his amendment would make the union label clauses of the Bill constitutional?
– No. At the same time, I think that by adopting it we shall prevent the Bill being challenged upon the ground of its unconstitutionality. Even if the amendments; of which notice has been given, are not carried, the Bill will still give effect to the union label.
– I do npt agree with the honorable and learned member.
– Upon that point, the AttorneyGeneral has not been quite as candid as he should have been.
– The honorable and learned member is not justified in saying that.
– I am not making any ungenerous representation. However, I have no desire to elaborate that point. I fail to understand why honorable members should be, so anxious to give a legal status to union labels - to legalize them in the sense of affording protection against the infringement of their copyright.
– There is nothing in pirating a union label, I suppose?
– There is no necessity for the introduction of these labels into Australia, such as may be said to exist in America. Wherever arbitration Acts are in force in Australia, unions have acquired such- a status that they do not require this principle to be inserted in the Bill. The old unions might disappear, and as long as they remained organizations under the Arbitration Act labour would not be any the worse off.
– That does not affect the principle at issue.
– We are not here like philosophers, to deal with matters quite apart from the facts. I should be very sorry to insert in a Bill a provision as to principle which was divorced altogether from the question of expediency or some concrete result.
– What would be the position of unions where there was no State arbitration Act in force-?
– In all the States the position of unions, where protected by such laws, is so high, as compared with the status of unions in England and the United States, that they do not require these adventitious aids.
– On a point of order, Mr. Chairman, I am afraid tha1!- we shall not make any progress unless we confine our attention to the clauses immediately under consideration. I understand that the honorable and learned member is going to propose an amendment in this clause, and whilst I do not like to object to his referring to another clause by way of illustration, I feel that he is now roaming all over the Bill, and is discussing in advance something that we have yet to consider.
– At the very outset, I suggested, with a view to avoiding a duplication of debate, that upon the definition clause we might have a general debate on the union label clauses.
– Not upon this definition-, but when we come to the clauses relating to workers’ trade marks.
– I am willing to adopt, that suggestion. My idea is that a general discussion at this stage would expedite the debate; but if it will suit the purpose of the Government to have a separate debate on the union label provisions, I shall offer no objection. At the same time, I feel that I am perfectly in order in making a general reference to other clauses. When I say that the status of unions in Australia is exceptionally high, I do not mean to suggest that I should not like to see a further improvement, if they were capable of improvement ; but they have mutual rights against one another which are not enjoyed by unions in England. In the United States, fierce disputes between capital and labour have been brought about chiefly by an attempt - which has been declared by the Supreme Court of America to be constitutional - on the part of employers to frame agreements excluding non-unionists from employment.
– I understand that the honorable and learned member is going to move an amendment of which he has given notice, to insert certain words in clause 4.
– That is so. ‘
– The honorable and learned member has not stated his amendment, but is discussing the relations between employers and employés on a clause which, so far as I can see, provides no such subject for discussion. I would point out that we are discussing the definition, and that the Bill up to the stage which we have reached, does not contain any reference to union marks. Indeed, a reference to “ trade union marks “ has been struck out of a preceding clause. If the honorable and learned member wishes to deal with’ trade union marks, it will be necessary for him” to move a substantive motion to cause the re-insertion of that reference, if he desires to deal with them at this stage:
– I have read the definition, which I desire to insert, and my point is that if that amendment be made, the trade union clauses will be inconsistent with the Bill. Hence the question of whether they ought or ought not to be inserted, has mow to be dealt with. If the Attorney-General wishes to have another debate upon this question, I shall offer no objection; but I thought that after last week’s proceedings, the Government were anxious to push on with the consideration of the Bill. If you think, Mr. Chairman, that I cannot refer generally to the- question-
– I fail to see the connexion between the amendment and the remarks which the honorable and learned member was making when I interrupted him.’ I should be glad if he would point it out.
– I shall endeavour to do so. If the definition be inserted, it will be inconsistent with the proposed clauses dealing with union labels, of which the Attorney-General has given notice.
– I would point out to the honorable and learne’d member that in moving the insertion of certain words, he would not be entitled to say what the addition of those words would ‘not effect. He would certainly be at liberty to show what they would effect, but not to anticipate amendments that were not’ before the Committee.
– On the point of order, Mr. Chairman, the honorable and learned member for Angas was pointing out that if the definition which he proposes were accepted, it would exclude tha present trade union clauses from the Bill, and also prevent the insertion of the amending clauses relating to that matter.
– Is not that a premature argument ?
– I do not think it) is. I submit that the honorable and learned member is in order in giving reasons why this clause should not cover what he describes as so foreign a matter as trade union labels.
– I think that it will shorten the debate, if’ I point out that the definition clause does not provide for anything regarding trade union labels, and that the fact that the amendment which the honorable and learned member desires to insert would, in his opinion, cause the union label provisions to be inconsistent with the Bill, need not be dealt with at this stage. That question can be more properly discussed when the provisions in question are before us.
– On the point of - order, , Mr. Chairman, I desire that there shall be only one debate upon the question of the union label clauses, but, as I understand the position taken up by the honorable and learned member for Angas, it is this : He wishes to insert in the measure a definition of “ trade mark “ which, in his opinion, will limit the scope of the
Bill ; and it seems to me inevitable that he is bound in fairness to the Committee to point out what would be the effect of the insertion of the proposed definition.
– But he cannot deal with that matter in detail.
– I submit that he can. Surely the honorable and learned member is not only entitled, but bound, in fairness to the Committee, to give his reasons for proposing the insertion of a definition which will have the limiting effect that he has pointed out. I think that it will considerably facilitate debate if the honorable and learned member is allowed to give the reasons why he believes the definition that he proposes to insert will exclude certain classes of’ marks. That is absolutely germane to the amendment. I submit* that he is entitled to refer to the effects of leaving in the Bill the provisions relating to those marks, as contradistinguished from a proposal to omit them.
– In relation to the question which the honorable and learned member is arguing, there is one point which to my mind is fatal. Even if we inserted the definition which the honorable and learned member for Angas proposes, providing in effect that “ trade mark” shall not include trade union marks, it would not carry us any further, because we find at the beginning of clause 4, the words, “ except where otherwise clearly intended. “ Therefore, the amendment would not apply to another part of the Bill where the clear intention was to the contrary. It is useless, to contend that reasons may be given why the definition in this clause will or will not include anything else, because it would be perfectly open to us, under the interpretation clause, to insert anything else that we .please, unless it is otherwise clearly intended. Those words govern the whole matter. My next point is, that whilst the honorable and learned member might be at liberty to show what the amendmentwould include, and what it would not, he has really been roaming all over the Bill.
– I had not the remotest intention of expatiating on the measure at length. Sometimes an interjection will develop a thesis which one never intended to discuss. In conclusion, I will quote from the report of«the Industrial Commission for 1901, vol. 17, page 627-8, which shows that trade ‘ union labels are considered not to be true trade marks.
– Is that the report of ar» American Commission ?
– No; of an English Commission.
– The newspapers say that the trade union label is unknown outside the United States.
– I as.k honorable members to allow the honorable and learned member to proceed without interruption. In Committee honorable members are allowed to speak as often as they please on any particular clause, so that they have ample opportunity to express their views.
– The passage which I wish to quote is as follows: -
The union label has during the past ten or fifteen years become an increasingly common device among labour organizations to influence consumers to buy union made goods, and thus to induce employers to use exclusively union labour. Nearly all of the States have adopted statutes allowing the registration of .union labels and trade marks, and providing for the punishment of persons using these labels without authority. Statutes of this sort, of course, differ from the ordinary laws regarding trade marks, since the union working man is not the owner of the article to which he affixes the label, but simply contributes his labour towards its manufacture.
According to the report of the Commission, trade union labels are not considered trade marks, and consequently Congress has not legislated in respect to them, because its power of legislation extends only to trade marks. The Statutes passed in the United States authorizing the use of the trade union labels are State Statures. The States have not power to deal with trade marks, but Congress has.
– The States have power to deal with trade marks within their own areas.
– The Commonwealth and the States have both power to deal with trade marks., but once a Commonwealth” Act is passed overriding the concurrent State legislation, the latter goes to the wall.
– In the United States of America the States have an exclusive, not a concurrent, power in regard to their own areas.
– The American legislation respecting trade union labels is State, not Federal, legislation. Acts have been passed by the Legislatures of the States, not merely legalizing the use of trade union labels, but even rendering it compulsory to brand Government goods, as having been made by union labour ; though upon that branch of the subject I shall not say anything more at present, in deference to your ruling, Mr. Chairman. I ask honorable members to accept the definition which I wish to insert. If it limits the scope of the measure by neutralizing the trade union label provisions, it will accomplish the object which I have in view. The omission of this definition is, in my opinion, a blot on the perfection of the measure. I move -
That the following words be added : - “ A trade mark’ shall mean a mark used or proposed to be used upon or in connexion with goods for the purpose of indicating that they are the goods of the proprietor of such trade mark by virtue of manufacture, selection, and certification dealing with or offering for sale.”
Mr. HIGGINS (Northern Melbourne).I should like to explain to the honorable and learned member for Angas that the Bill was drafted about fifteen months ago, before the English definition to which he has referred existed. Therefore it is hardly fair to blame the Attorney -General for its omission, especially as he had nothing to do with the drafting of the measure. I understand that the honorable and learned member wishes to insert the definition of a trade mark which is embodied in the English Trade Marks Act, passed on the nth August of this year. It is true that there is not a definition of a trade mark in the Bill, but there is a definition of the essentials of a registrable trade mark, so that what is needed is achieved, I think, as well here as in the English Act. Therefore, in my opinion, the Attorney -General is wise in not agreeing to amend the Bill, since it has already passed through the Senate, and we wish to reduce the points of difference between the two Chambers to a minimum. As the Attorney-General has pointed out, the English definition applies only “unless the context otherwise requires,” and our definition applies only “ except where otherwise clearly intended.” The English Act contains a provision, to which the honorable and learned member for Angas did not refer, recognising the full principle of the trade union label.
– I referred to it. I said that it has nothing to do with the trade union label, though some people think that it has.
– The full principle is admitted in section 62. as well as in. sections 63 and 64, which provide thatone may own a trade mark, although he may not own the goods to which it is applied. The position of the honorable and learned member was that, in order to own a trade mark, one must own the goods to which it is applied.
– I said that section 62 dealt with the case of expert examination. It has nothing to do with the trade union label.
– Section 62 provides for special trade marks, its marginal note being “Standardization, &c, trade marks.” It reads -
Where any association or person undertakes the examination of any goods in respect of origin, material, mode of manufacture, quality, accuracy, or other characteristic, and certifies the result of such examination by mark used upon or in connexion with such goods, the Board of Trade may, if they shall judge it to be to the public advantage, permit such association or person to register such mark as a trade mark in respect of such goods, whether or not such association or person be a trading association or trader, or possessed of a goodwill in connexion with such examination and certifying. When so registered, such trade mark shall be deemed in all respects to be a registered trade mark, and such association or person to be the proprietor thereof.
So that an association may own a trade mark, although it does not own or make the goods to which it is applied. That is the whole principle at issue. It is like the system of giving hall-mark by search. The manufacturers of Sheffield are interested in keeping up the standard of Sheffield goods, and for two or three centuries past have adopted a system of search. Searchers go through the goods, and ascertain whether they are worthy of having the hall-mark attached to them. The union label would be similar to a hall-mark, to the extent to which it would afford a guarantee as to the standard of the goods.
– We have made no provision for that in the Bill.
– We shall do that presently. In section 63 provision is made similar to that adopted in regard to the Sheffield marks ; and in section 64 provision is made similar to that which applies to cotton marks in Manchester and other places. If we adopt the definition pro posed by the honorable and learned member for Angas, we shall only lead to confusion, and I think we should be well advised if we disposed of the formal clauses as quickly as possible, and dealt with the question of union labels, as it will arise under Part VII. of the Bill.
– I think that it would be advisable to take the sense of the Committee now, because there can be no objection to ‘defining what “ trade mark” means.
– The’ honorable and learned member for Angas has not told us what the effect of his amendment will be.
– It will define exactly what we mean by “trade mark.”
– What would be the legal interpretation of “ trade mark “ then ?
– The honorable and learned member for Angas has adopted the usual interpretation of trade marks, and I do not think that the Attorney-General could quote any instance to the contrary except, possibly, from the decisions given by elected Judges in the United States, which are not worth considering.
– What meaning would the amendment have?
– We should define what the Committee means by “trade mark.” We cannot, by refusing to define “ trade mark,” widen the scope of its meaning. If we were to adopt the definition proposed by the honorable and learned member for Angas, it would be competent for us to deal in this measure with all those matters which would come within the meaning of “ trade marks “ under the Constitution. The definition has been framed’ so as to give the widest possible scope to the meaning of “ trade mark.” It is very wide, but very clear and distinct. It seems to me that an attempt is being made to usurp jurisdiction that we do not possess under the Constitution. Our only power of legislation in regard to trade marks is conferred under section 51 of the Constitution, and if the provisions relating to union labels cannot be brought within the definition of “trade marks,” as that term is used in the Constitution, any legislation that we may pass on the subject will be absolutely useless.
– Then the honorable and learned member might just as well let the provisions go.
– The honorable member can see that we have no right to introduce two different principles in the one Bill. The object of the measure is declared to be, in the first’ instance, to grant certain rights to marks put on goods which belong to the owner or proprietor of the marks. But it is also sought to empower bodies of men who are not the owners of goods to affix to them a particular label or mark.
– The principle is the same. It is proposed to protect the employe’ as well as the employer.
– If members of the unions like to associate themselves together as co-operative bodies for manufacturing purposes, they will be perfectly entitled to register a trade mark and apply it to the goods they produce, as is now done by some of the larger co-operative societies. It isa mistake to suppose that the trade marks provisions pure and simple are intended for the protection of employers only. The employes will have the same privilege that will attach to employers, so long as they can claim the ownership of the goods to which the trade mark is to be applied. The Bill proposes, however, to adopt a principle which will conflict- with the rights of the owners, of the goods. It is proposed to give to a body of men the power to affix a label to certain goods, because they have been at one stage or another engaged in their production. It- might be possible to affix thirty labels to some classes of goods. We should define the meaning of “ trade mark,” firstly, in order that we may know where we stand, and, secondly, with a view to avoiding litigation. I would urge the Attorney-General to accept the amendment, because the definition would be wide’ enough to embrace every provision that could possibly be said to relate to trade marks. Any omission of a definition will not enable us to include within the scope of the Bill provisions for union: labels, if they cannot be said to come under the head of trade marks. The inclusion of union label provisions in a measure of thiskind might be attended with some disadvantage if the matter came up for argument before the High Court. If it were held that union labels, did not come within the definition of trade marks, it would not becompetent for those who were representing, the unions to argue that they might be brought within the scope of the Copyright. Act. If, however, union labels were provided for in a distinct Bill, counsel might 0 argue that they could be registered under the Copyright Act. If the AttorneyGeneral had desired to secretly defeat the union label clauses, he could not haveadopted any more effective method than that he has followed. A lot of cooperativebodies to-day are using distinctive trademarks. Consequently, to describe the proposal under discussion as legislation which: is .solely in the interests of the employersis to confess an absolute misunderstanding of the purpose of the Bill. If the proposed definition be accepted, Ave shall knowexactly where we are.
– If it is not accepted we shall know that.
– I am sure that the honorable member is wrong. The Attorney - General himself is unable to say what is the scope of some of the subsequent clauses, and the honorable and learned member for Northern Melbourne occupies a similar position in respect of other provisions. I venture to say that if we do not adopt the proposal under consideration, within a few years, we shall find the funds of the unions absorbed in law suits. The Attorney-General is well aware that any litigation in connexion with trade marks usually involves an expenditure of from£500 to£2,000. If by our legislation we foster such litigation, within a comparatively brief period the whole of the funds of the unions will be dissipated in that way.
– We must have cheap law.
– When I asked the honorable member to assist me to provide cheap law - I refer to the time when the Judiciary Bill was under discussion - he failed to grasp the position. Is it not wise that we should make our meaning in legislative enactments so clear that he who runs may read? By declining to accept this definition, we shall increase litigation, and that should be the last desire of honorable members. I specially appeal to the Labour corner in connexion with this matter. If they are really anxious to pass legislation dealing with the question of the union label, realizing the difficulty that may arise in regard to its constitutionality, they should be especially careful to see that its application is not limited by the scope of the particular Bill in which it is embodied.
– We are opposing this particular amendment so that it shall not be limited.
– There the honorable member is making a mistake. This definition is so wide that it will embrace every known case that has come under any Trade Marks Act in the world. There is no known case in which legislation in respect of the union label has been included in a Trade Marks Act.
– There are plenty of such oases in America.
– But the cases which have arisen under that legislation have only come before certain States Courts. Nobody pays any attention to the decisions given by elective Judges in the States of
America. I know none of them whose opinions are quoted with respect.
– The honorable and learned member is not right. I do not think that he ought to make that remark in regard to the great States of America.
Mr.CONROY.- What I have stated is so much a fact that the great States of America - like the State of New York - have abandoned the system of elective Judges, and have appointed fixed Judges.
– Order ! I point out to the honorable and learned member that that matter is not now under discussion. I recognise that interruptions caused him to digress, but I hope that he will not persist in that line of argument.
– This definition is so wide that it has stood the test of experience, and up till the time of the publication of the last Law Reports, no case had arisen which disclosed that it was in any way faulty. Considering the careful manner in which it was drawn up, I think it will be found that it is about as full and free a definition as can be obtained.
– What does the honorable and learned member understand by the words “goods of the proprietor” in the proposed definition?
– I cannot discuss that matter at the present moment.
– Is the definition so vague and uncertain that the honorable and learned member does not know its meaning?
– I do not admit that if is vague or uncertain.
– What does the honorable and learned member understand by the words “ goods of the proprietor of such trade mark “ ?
– Those words go beyond anything that is contained in the definitions embodied in our States Acts which deal with trade marks. The honorable and learned member for Northern Melbourne has said that if we accept a definition such as that which is proposed we may exclude union labels.
– The honorable and learned member himself said that we shall do so.
– We shall exclude them if this definition covers everything that can come within the scope of a Trade Marks Bill. In my opinion it does cover everything. My point is that legislation in
– Does the honorable and learned member mean to say that we have not power to insert in this Bill anything that we choose by way of definition ?
– I do. In dealing with the matter we must recollect that this is a Federal Legislature. We can only exercise certain powers which have been conferred upon us in respect of trade marks.
– We have full power to legislate upon that matter.
– We have to study the definitions of the term “ trade marks,” which are embodied in various States Acts, in order to appreciate what was meant when those words were inserted in our Federal Constitution.
– The Constitution gives us supreme power to deal with this matter.
– Order ! I do not think that the definition which is under consideration has anything to do with our powers under the Constitution.
– If we accept this definition some of the clauses will clearly be outside the order of leave. It may be open to Mr. Speaker to say, “ I cannot rule this or that out of order, and therefore it may be inserted;” but the High Court will confine itself to the consideration of the power which we possess to deal with these matters. If the High Court held the union label clauses to be outside the Constitution, nothing that we might do would help us. That is one of the difficulties with which the Attorney-General has been confronted in taking up those clauses, and I think that he has made a mistake. It would be wise for the Committee to accept the amendment, as it would render litigation to determine the effect of our legislation in this respect wholly unnecessary. Unless we have a clear definition of “ trade mark,” it will be impossible to say whether many of the subsequent clauses relate to trade marks or union labels. The Committee, however, does not appear to be prepared to give any consideration to this point, and two or three years hence I shall be able once more to show that another blunder has been committed by the Parliament. We are entering upon an evil course in refusing to define what we mean. If the question be left for the determination of the High Court, thousands of pounds of the workers’
Mr. ISAACS (Indi- Attorney-General). - I shouldlike to make one or two observations regarding , the amendment. I take it that it is our duty when, as a Federal Parliament, we seek to cover the whole ground relating to trade marks - so that there shall be no collision between State and Federal legislation on the subject - to see that we do cover the whole ground. It is for this reason that we use the words “ trade marks.” When we simply use those words, we cover whatever ground the Constitution gives us in this regard, and do not leave any room for doubt as to there being only a portion of the field touched bythe Commonwealth Legislature, and another portion occupied by the States. I take it that the object of the framers of the Constitution in giving us this power, was to enable us, if we legislated at all in regard to the question, to so legislate as to cover the whole field and secure uniformity. It is for this reason that we have not given any definition. We cannot extend the meaning of the words “trade marks” as used in the Constitution, and we certainly do not wish to limit it. A definition is an excellent thing when the Parliament has power to cover as wide a field as it pleases, or to limit the scope of its law to whatever extent it chooses; but whatever may be the meaning of the words “ trade marks “ as used in the Constitution, we cannot go beyond it, and we have, therefore, refrained from inserting in this Bill an interpretation of those words. When I use the word “ we” I have no desire to claim credit for myself; credit is due really to the draftsman. The Bill was framed, not by the late Government, but by their predecessors, and there seem to have been very good reasons for refraining from giving a definition of these words. Another point is that uniform language is not employed in the trade mark legislation of the various States. In the New South Wales Act it is set forth that “ trade mark “ includes so and so; in the Trade Marks Act of another State no definition of the words is given, whilst in the legislation of still another State it is provided that ‘‘trade mark” means a trade mark registered under this Act. If we gave a limited definition of the word we should not be sure of the extent to which we were covering or superseding the ground occupied by the various States laws, and therefore the only safe course is to stand by the words “ trade marks “ used in the Constitution. I think that these are fair and valid reasons for the position taken up by the Government. But there is something else to be said. 1 quite appreciate the view expressed by the honorable and learned member for Angas that we should endeavour to secure some certainty in our laws. But I hold that if we keep to the constitutional words we shall achieve that end.
– But only after litigation.
– Without litigation we can never be absolutely certain of anything under our Constitution.
– We wish to avoid! litigation.
– True ; but I am pointing out that we are more likely to secure certainty by adopting the words used in the Constitution. In adopting the English interpretation of “ trade mark,” in which we find the words “ that they are the goods of the proprietor of such trade mark,” does the honorable and learned member for Angas mean to say that the meaning is that the same person is to be the owner of the goods and the owner of the trade “mark ? Is he able to say that his proposed definition is so clear that that is its meaning?
– I am sure that, having regard to the qualifying words relating to proprietorship which appear at the end of the clause, that is its meaning.
– I shall show why it is clear that there is a great deal of doubt upon the point. The promoter of the English measure was Mr. Fletcher Moulton. K.C., a member of the House of Commons, and one of the highest authorities on trade marks law.
– I read the evidence he gave before the Committee.
– He was a member of the Select Committee appointed bv the House of Commons to deal with the Trade Marks Bill, and offered himself as a witness. In the course of his examination this very question was put to him by Sir Charles Renshaw, and in reply he said -
May I explain to Sir Charles why I have used the words “ They are the goods of the proprietor of such trade mark.” What I want to guard against is appearing to mean that they are the property of that man ; they are his goods,, not in the sense of their being his property; in fact a man might put. his trade mark on goods worth thousands of pounds, without having a penny of interest in them.”
Does not my honorable and learned friend see that the author of the English Bill clearly shows that the proposed definition has not the meaning which he wishes to attribute to it, and that is evidence that we cannot secure certainty by” adopting it. Does he not see that if his definition is to tie up the ownership of the trade mark with the ownership of the goods that is the very thing which the promoter of the English Act wished not to do. Therefore I point out- .
– He could not do that, because section 62 is inconsistent with it.
– But the honorable and learned member has used the words “ selection and certification. “ The same observations will therefore apply. If my honorable and learned friend recognises that, according to the interpretation placed upon these words by Mr. Fletcher Moulton, we should nui, by using them, necessarily have the ownership of the good’s running with the ownership of the trade mark, how can he say that his amendment would exclude such a thing as a union label ? As I pointed out before, even if that were the meaning of the words, it would not exclude-
– Would the honorable and learned gentleman say that the registered owner oE a union label was the proprietor of the goods within the meaning of this part of the definition clause?
– Not necessarily.
– That is the point.
– I merely wish to point out that my honorable and learned friend, by using th’e words which he proposes, would not secure the definition he desires.
– I admit that.
– In addition to that, the definition might throw the whole of the States into confusion, because when we are taking over their Trade Marks Acts - and we know that their own definitions of trade marks, so ‘far as there are definitions, differ - we may be slicing up, so to speak, portions of their Acts, and allowing other parts to remain ; Ave mav be leaving some States Acts untouched, and taking in the whole of others-
– But the Constitution is an Imperial Act.
– The honorable and learned member knows that the various States have shown exactly how -far thev have legislated on this subject. If we say that we shall legislate to only a certain extent in regard to this question, our Act may not fit in with’ the States Acts. While it may more than cover some of them, it may not cover others, and cover still others ‘only in parts. That being so, my view is that we should keep to the words used in the Constitution. We wish to cover the whole of the ground included by the use! of the words “trade marks” in the Constitution, but we could not, even if we desired, go beyond that. If we cover all trade marks, we cover all States Acts dealing with trade marks. Apart altogether from the difficulties I have pointed out, there is one other very important consideration. I am sure that the honorable and learned member for Angas does not wish to act unfairly ; but according to his. own showing the acceptance of his amendment would determine the question of the insertion of provisions relating to workers’ trade marks. It would not be fair to have that question decided until it had been properly discussed, and I hold that it cannot be so discussed at this stage. I, for one, could not properly deal with it on this clause. It is not my intention to discuss it until I can do so effectively, so that I shall bcf able to put clearly before the country the views of the Government. It would not be fair to the Committee or to the country to have on this clause, so to speak, a snatch vote upon that question. In any event, it would not, in my opinion, decide the matter, and, therefore, the honorable and learned member’s object would not be achieved. Apart from that question, however, it would be a mistake to insert an interpretation which could not widen, but might, on the other hand, shorten, the application of the Bill. If we do not simply adhere! to the use of the words “trade marks,” we may possibly fall short of the power given us by the Constitution, and thereby throw the States into confusion. I trust that that will not be done, but that we shall follow the course adopted by the last two Governments, both of which, for what I think are< practical reasons, refrained from inserting in the Bill a definition of the words.
– It is very difficult for a layman to follow the devious arguments of lawyers on a subject like this. I can speak on the amendment of “the honorable and learned member for Angas only from the stand-point of an ordinary business man, and it seems to me that the measure should contain a distinct definition of a trade mark. The AttorneyGeneral takes up the position that any definition will reduce the possible applicability of the Bill to the conditions which may obtain in the various States, but that does not seem a satisfying reason why we should make no effort to determine what is henceforth to be understood by the term “ trade mark.” The honorable and learned gentleman ‘told us that, when the Committee came to deal with the union label provisions, he would take us into his confidence, and explain the whole position, and I hope that when he has made that explanation, he will give us an opportunity, in the event of the amendment not being carried, to come back to this clause, and insert in it a definition of a trade mark. I know that it is idle for any one who does not possess a legally-trained mind to go into the devious paths of trade marks legislation, but I hope that, in the interests of the commercial and trading community, the Committee will make the provisions of the Bill so clear that it will not be necessary to resort to the Courts for an interpretation of their meaning. Therefore I feel that we are justified in asking the AttorneyGeneral to determine wha’t constitutes a trade mark. I think that the honorable and learned member for Angas has done well in asking the Committee to adopt the English definition, to which the AttorneyGeneral objects on the ground that it may limit the scope of the measure. What we desire is, not to pass the Bill merely to give effect to the trade union clauses which have caused so much obstruction, but to place on the statute-book a measure which will be of benefit to the whole community. Surely the Attorney-General, whose intellectual ability is unquestioned, will help us in doing ‘that, and will place us in possession of the information which he can obtain from the capable officers of his Department. Many of us think that the honorable and learned gentleman would not urge the metaphysical objections to the amendment which we have heard if he had not ahead of him the troublesome trade union label provisions, and we think that, for the guidance of the general public, as well as of manufacturers and! merchants, he should, as Attorney-General of the Commonwealth, assist us to indicate clearly what constitutes a trade mark.
– As I understand the honorable and learned member for Angas, the object of the amendment is to exclude the provisions of Part VII. from the scope of the Bill, but, having listened attentively to the speeches of the honorable and learned members for Northern Melbourne, Indi, and Werriwa, I have come to the conclusion that that object would not be achieved if the amendment were carried. The honorable and learned member for Angas interjected when the Attorney-General was speaking that section 62 of the English Act separates ownership of goods from ownership of a trade mark. It is proposed to practically embody that section in the Bill. I did not, however, follow the honorable and learned member for Northern Melbourne in his statement that section 62, and subsequent sections, give power to register union labels.
– The principle of. the union label is recognised in section 62.
– It may be ; but I do not think that that section has a union label tinge upon it, which confirms me in the view that the object of the honorable and learned member for Angas would not be achieved, even if the amendment were carried. In any case, I think that this is not the proper place to test the feeling of the Committee in regard to the trade union label provisions. I agree with the AttorneyGeneral that, in view of present conditions, it would not be wise to define a trade mark here, seeing that, for some considerable time, we must carry on the Trade Marks Acts of the States. Clause 16, however, defines the essential particulars of a registrable trade mark, and if an effort is to be made to test the propriety of defining a trade mark, I think it should be made on that clause.
– No ; because it is provided that the provisions of Part III. shall not apply to the workers’ trade mark provisions.
– I like straight-out votes on clear-cut issues, and I do not think that such a vote would be obtained on the union trade marks provisions by dividing on the amendment. The proper time to test the feeling of the Committee in regard to those provisions will be when we come to Part VII., whose consideration I am prepared to approach with an open mind. I suggest the withdrawal of the amendment.
– I think that the proposed definition should be inserted, whether the union trade label provisions are or are not agreed to.
– The honorable member for Moira based his opposition to the amendment on the ground that an object in view, which he assumes is the whole object - the rendering invalid of the trade union label provisions - would not be achieved if it were agreed to; but the interjection of the honorable and learned member for Angas, I think, removes that objection. The honorable member thinks that this is not the stage at which to discuss the merits of the trade union label provisions, in which I agree with him, because, as the Attorney-General has pointed out, we cannot by definition limit any subsequent provisions of the Bill unless we delete the words “ except where otherwise clearly intended.” I do not suppose honorable members wish to delete those words, and cause the Bill, perhaps, to be re-drafted; but if they are “permitted to stand, no definition of a trade mark which we might- insert would necessarily affect the trade union label provisions. At the present time we are concerned only with whether we should or should not seek to define a term -which governs the whole measure. The measure is called a Trade Marks Bill, but there is nothing in it to indicate what a trade mark is. The Constitution gives us unlimited powers over trade marks, and the Attorney-General argues that we should, therefore, not attempt to limit those powers, but should exercise them to the full. I do not agree with the Attorney-General in his view that it is expedient to omit a definition of the trade marks with that end in view. When powers aTe conferred! upon us, we do not necessarily receive an injunction to use them to the fullest extent. We should exercise them just so far as we may consider it is expedient to do so.
– But the honorable member does not propose to leave some trade marks untouched.
– No.
– We cannot widen the definition, but we may narrow it.
– We could narrow the definition without affecting the ordinary users of the trade marks.
– Where is the necessity for narrowing it?
– At present we know the uses to which trade marks can be put, and it is very easy for us to adopt a definition which would bring all the present users of trade marks within the scope of the Bill. .The Attorney-General told us, earlier in the debate, that each State had its own Trade Marks Act, and that the usages which have prevailed hitherto in the various States would be seriously interfered with if we limited our very wide powers over trade marks generally. I agree with him in his axiom, but not in his deduction. He assumes that we should interfere as little as possible with the trade mark users in the States, but surely we could make the definition wide enough to cover all the different usages in the States, and no more. If we adopt that plan, the holders of trade marks will know exactly where they stand, but if we omit .to define trade marks, we shall lead to endless litigation. Surely we should not render it necessary for persons to go before the Courts, in order to ascertain their true positions. The Attorney-General told us that any interpretation of the Constitution would necessarily involve immense litigation.
– I said that we should never reach any certainty in regard to many of these matters without some reference to the Courts. _
– It should be our object as far as possible to prevent appeals to the Courts.
– I agree with that.
– The best way in which we can do that is by adopting a definition of the term “trade mark,” wide enough in itself to embrace all the existing usages in the Commonwealth, and yet not so wide as to leave room for doubt as to our meaning. I do not see why the AttorneyGeneral should object to that course being adopted. I can understand the fear of the honorable members of the Labour Party that any limitation of our powers might prove fatal to the inclusion of the union label proposals ; but no such result could accrue from the adoption of the amendment. All we should have to do would be to adopt some wider definition of “trade union label.” I hope that the Attorney-General will see his way to accept the amendment, because it is our dutv to make our meaning plain, and to avoid giving rise to complaints that owing to the want of definiteness in our legislation, the public are put to considerable expense in bringing actions at law.
Mr. GLYNN (Angas). - I should like to say a few words in reference to the remarks of the Attorney-General. He has argued that we should leave the Constitution to operate to the fullest extent of the powers given to us under it, and that if we adopted a definition, those powers might be limited. That argument would also apply to the .definition adopted in the English legislation. The Constitution Act is an Imperial Statute, and the words “ trade marks “ contained therein will be interpreted according to the signification attached to them in England at the time the Act was passed. In 1901, when the Constitution Act came into force, we had various States laws, all based upon English common law, with statutory modifications ; and if I remember aright, the New South Wales Act would exclude union labels, because trade marks could not be registered by any class, but must be registered by a “ person,” which would include a company. Surely we ought to define what we mean, and not perpetuate the state of ambiguity which existed prior to the passing of the Trade Marks Act in England in 1905. It was in order to get rid of these ambiguities, and the somewhat conflicting decisions, that that Act was passed, and we should commit a great mistake if we failed to accept a definition which is a digest of the best of the English decisions. The draftsman .of the Bill before us may have omitted a definition of “ trade mark,” because the Bill was first drafted in 1903, up to which time there was no English Registration Act that contained a definition of “trade mark.” We should certainly take advantage of the very deliberate judgment of experts as to what is a trade mark. If we include the proposed definition, the Bill will embrace everything covered by the English definition, and if union labels come within the scope of that definition, they will be trade marks. If union labels can be registered as trade marks by virtue of proprietorship, which mav exist in regard to certain classes of goods, we shall not require express clauses to bring them within the provisions of this Bill ; because, if they are true trade marks, they will come within the scope of the measure in any ease. If they are not true trade marks, we cannot include them within the scope of the measure by means of the provisions in Part VII. Apparently the object of these provisions is to give a bias by legislation to the definition of trade marks, and to express our opinion that when the Constitution Act came into force, the definition of trade marks covered union labels. My contention is that if under the law of 1901, union labels were not trade marks, our legislation cannot make them such. Not one clause in the ‘Bill would legalize the use of union labels, unless they were true trade marks. I would remind the Committee that when I asked the Attorney-General whether this definiton was perfectly consistent with the union label clauses he hesitated to say that it was. My original point was that it would be inconsistent with those provisions. I am aware that in England very conflicting decisions have been given as to what is the real meaning of “ proprietorship “ and “ownership “ in goods. But that some provision is necessary is as clear as daylight. That is evidenced by the fact that clause 22a, as framed by the Attorney-General, is practically a copy of section 62 of the Imperial Act of 1905, which was introduced to meet the case of an expert who had been held to have no right of proprietorship in the case of certain goods. Owing to a doubt having arisen as to whether an expert who examined goods and certified as to their origin, mode of manufacture, and so forth - that is to say, whether they were hand-made or machine-made - had a right to a trade mark in respect of those goods, the law was declared in section 62 of the Imperial Act of 1905.
– Was it held that he had a right to a trade mark?
– Under some decisions, it was.
– To what is the honorable and learned member referring?
– To the “mark” of an expert examiner of goods. A declaratory section was introduced into the English Act, providing that an expert’s relationship to such goods justifies the use of a trade mark.
– Is not the honorable and learned member’s amendment inconsistent with the trade mark proposals?
– I think it is inconsistent with the union label provisions of the Bill, but it is perfectly consistent with trade marks minus those conditions, Kerly says -
In some cases it is difficult to decide what the precise meaning of a trade mark is ; for instance, where A has selected and imported goods made by B for many years, and has sold them under a particular trade mark. If A has been the sole importer, does the reputation of the mark refer to his selection and importation, or to B’s manufacture? Such a question arose in Hirsch v. Jonas. There the plaintiff bought cigars of a foreign maker, who, at his request, placed a label bearing the words Gloria de Inglaterra Havannah, which had been designed and registered as his copyright by the plaintiff, upon the boxes. Subsequently the maker began to supply to the defendants for sale in the market similar cigars, not purchased by the plaintiff, but bearing the same label, and this the plaintiff unsuccessfully sought to restrain. The name of the plaintiff did not appear on the boxes, but that of the maker did. “ The trade mark of manufactured goods,” said Jessel, M.R., “means, X suppose, that the goods are manufactured by the person whose trade mark it purports to be. I can understand a man saying, ‘I am not the actual manufacturer of goods, but the selector of goods, and my reputation for cleverness and selection is so great, that goods marked with a mark to show that they have been selected and approved of by me will fetch a higher price in the market.’ “
The point at issue was : ‘ 1 Was such a man, seeing that he had not a direct ownership in the goods, entitled to register his mark under the Imperial Trade Marks Acts of 1883 and 1888 “ ? It was held that he was entitled to register. But to set the matter beyond all doubt a section was introduced which, the honorable and learned member for Northern Melbourne says, covers the question of the union label.
– What he said was that it covered the principle.
– Probably. I have heard that even members of the Ministry held that the principle of the union label clauses is affirmed by section 62 of the Imperial Act, I say that that provision has nothing to do with that principle. If there were any doubt upon the point, why was it embodied in a separate part of the Act? The English provision is practically identical with clause 22 of this Bill. The object of section 62 of the Imperial Act was to cover the case thus put by Sebastian, third edition, page s :-
Again, a trade mark may be so composed as to indicate that the goods have been examined “and selected by a person of known ability, so that they have attributed to them such value as his approval can give, and his reputation depends on their corresponding to their alleged quality.
That covers exactly the case which section 62 of the English Act is designed to meet. I contend that this definition is inconsistent with the union label clauses of this Bill. But, apart from that consideration, it is a definition which ought to be inserted. It declares, exactly what we mean by a trade mark, and its insertion will save an immense amount of litigation. The Attorney-General says that we must not attempt to cure defects of the law arising from ambiguity for fear that we may exceed’ our legislative powers as defined by the Constitution. I contend
– As. a layman I have every sympathy with the amendment proposed by the honorable and learned member for Angas, and unless the AttorneyGeneral has something up his sleeve, I cannot see any reason why he should refuse to accept it. In all our legislation we should aim at simplicity. By so doing we shall save an enormous amount of litigation.
– That sound’s like heresy.
– No doubt it is heresy to the legal profession, but we have to consider not the legal profession, but the interests of the general public. I should like to read to the Committee the definition of “ trade mark,” which is. contained in Palgrave’s Dictionary of Political Economy. It is as follows : -
The term “ trade mark “ denotes a distinctive mark or device, showing that the article to which it is affixed is manufactured or sold by a certain house or firm. By recent statutes a trade mark must consist of or contain at least one of the following essential particulars -
It then repeats practically the provisions of clause 16 of the Bill under consideration. To m,v mind, no harm can result from the adoption of the amendment. I would further point out that this Bill is not intended to benefit any particular section of the com.munity. Its provisions can be availed of bv everybody. No matter how poor a man may be, he is at liberty to register a trade mark, so long as this Bill is confined to the true purposes of such a measure; but the moment we introduce the union label clauses it becomes a Bill which is intended to benefit’ unionists only. _ Therefore, I trust that the amendment will be adopted.
– I think that the honorable and learned member for Angas, has made out a very strong case in favour of the-adoption of this defintion. As the” Bill will be very largelyused bv laymen, I think we should be acting wisely bv making our intentions as clear as possible. I was surprised to hear the honorable and learned member for Angas admit that his definition was inconsistent with the union label clauses of the Bill. Possibly the Attorney-General is of the same opinion, and if so, I can understand his opposition to it. If we do not clearly define our intentions in this measure, we shall foster litigation, which is always an undesirable thing. I hope that
– I understand that the Attorney-General has not yet agreed to accept the amendment.
– The honorable and learnedmember was not present when I gave my reasons for refusing to accept it.
– Their effect has been conveyed to me, but I do not know why the honorable and learned gentleman should hesitate to accept the amendment. It is far more desirable to have certainty in regard to our laws, than to make sure that we are going to the limits of our powers. I think that the definition is inconsistent with the union label clauses, and would probably exclude them; but the AttorneyGeneral has pointed out that it would apply only “ except where otherwise clearly intended.” The honorable and learned gentleman has said that if we pass clauses authorizing the registration of union labels, we shall thereby show that it was otherwise clearly intended, and that consequently this definition will not prevent their inclusion in the Bill. Therefore, if his own argument be correct, he can have no fear in that regard. I presume that he cannot complain of being judged in this respect on his own words. The insertion of this amendment would furnish a reason for not introducing in the Bill what I regard as matters foreign to it. This definition appears in the English Act.
– That is not the first English Act in which it has appeared.
– No. There was a definition in an earlier Act.
– In the Merchandise Act.
– I do not believe that we should slavishly follow English precedent, merely because it is English precedent ; but when it is proposed in relation to commercial measures to depart from the -provisions of English Acts, notwithstanding that British experience is infinitely wider and more varied than the Australian experience in this regard can be. the burden of proving the desirableness of making that departure rests upon those who propose it.
– Does the honorable and learned member think that the definition appeared in an earlier English Trade Marks Act?
– My impression is that I have seen it in one of the earlier Acts. That, however, may not be so. After many years’ experience, the Imperial Parliament, after dropping it for a time, has deliberately adopted a definition of “ trade mark.” The purpose is to define as clearly as possible the object at which a measure is being directed. It seems to me that the desirableness of leaving out a definition which would have the great advantage of showing to some extent the boundary lines within which the Bill is to operate, should be justified by argument. The burden of proof does not rest upon those who wish to follow the English precedent, and if the Attorney-General’s contentions have been correctly reported to me, it would appear that he has not correctly established that proof. On the one hand, if he says that this definition will not exclude the union label clauses, he can have no objection to it on that score. I assume that he is correct in his contention that it will not interfere with the union label clauses, which he has so much at heart, and which, at intervals, he has presented to us in a new dress, made in each case out of the old material. But, apart from that, it is desirable that we should follow the example set us by those who have had more experience than we have had. I do not suggest that they are better able than we are to form a judgment on the same material, but that they have ‘merrie material than .we have upon which to come to a conclusion. I therefore regret to find the AttorneyGeneral taking up an attitude of unwillingness-
– I do not think that the honorable and learned member is fully seized of the reasons I gave for opposing the amendment.
– The Attorney-General thinks that the Bill will be better without this definition.
– I say, first of all, that there are a number of States Acts whose definitions vary considerably; and, secondly, that there must be great uncertainty as to the meaning of this definition.
– There is less uncertainty as to the meaning of the definition than there would be* if no definition were inserted as to the scope of the Bill. I understood that Federation was established to secure uniformity in these matters ; but the Attorney-General wishes to continue the old divergences.
– No; I wish to provide for trade marks, whatever they are.
– So that “trade mark” in one State will have a certain meaning, and in another State a different one.
– No; the words will have the same meaning all through.
– This Bill is to become the Australian law relating to trade marks, subject to the adoption of the common law of England in that regard.
– I do not wish to leave one part of a State Act in existence, quite indefinitely, and, so to speak, to take away, the rest of it.
– I think that that will be the result of our failure to pass this definition. The Attorney-General is proposing to allow the usages of the various States to continue to operate. The logical result of that will be that the High Court will have to decide in one way regarding a trade mark case coming from one State, and to give a different decision in regard to a trade mark case arising in another State.
– If we insert this definition, we shall have to argue that it affects every definition in every State Act dealing with this question.
– I repeat, that the AttorneyGeneral apparently desires to continue the differences between the various definitions of “trade mark” in the States Acts. It may be contended before the High Court that a certain device is a trade mark, according to the practice in one State; and the decision in that case will be imposed upon the rest of Australia. The question of whether a trade device is or is not a trade mark for Australia will thus depend upOn what used to be the law in the State in which the case arose. The Attorney-General, by refraining from inserting this definition, is insuring, a continuance of the divergences. In any case, rights under the Trade Marks Acts are preserved.
– Not if we limit the definition of “trade mark.”
– Anything which has been lawfully registered as a trade mark in a State will continue to be a trade mark. If the Attorney-General’s view is to prevail, we shall never secure uniformity in regard to trade marks so long as they continue to be renewed. The different views which have prevailed in the different States must continue.
– No; because those rerenewals must stop after a certain time.
– When .the time expires, they will have to be renewed under this measure ?
– Yes.
– And when the renewal takes place it should be under a uniform system.
– That is what I am endeavouring to secure.
– No. I hold that, unless we have a uniform view of what a trade mark is, we shall not secure uniformity in connexion with the registration of trade marks. If the Attorney-General’s view is to prevail, the result will be that, because a » device was a trade mark, say, in New South Wales, it must continue to be a trade mark in the Commonwealth, because, owing to a piece of good fortune, it happened to be registered in that State. But if it were not a trade mark according to the Western Australian view, the unfortunate man in that State would not secure that which was given to his brother in New South Wales. It is essential that we should have a definition, in order to show what devices are to be registrable. I know, however, that when the Attorney-General has made up his mind, after full consideration-
– Two Governments took the same view as I do. I am not making any departure from what they did.
– But did the late Government, as a Government, deal with this matter ?
– No.
– I shall be able to show that they did.
– I beg the honorable and learned gentleman’s pardon.
– I may be wrong, but I shall give reasons for my belief.
– It was not dealt with at any Cabinet meeting which I attended. Even if the late Government had considered this question, I am sure that it would have been prepared to listen to reason, and I trust that the present Administration, in the person of the Attorney-General, will take up the same position. I venture to say, with every respect, that the AttorneyGeneral’s own reasons in opposition to the amendment are among the most substantial that could be given in support of it, and I hope that, in spite of his previous refusal, he will at the last moment accept if.
Mr. JOSEPH COOK (Parramatta).The honorable and learned member for Angas, I understand, proposes to insert in the Bill a provision which has received the approval of the Imperial Parliament within this very year, and, while I agree with the honorable and learned member for Corinella that we should not slavishly follow the opinions and conduct of any Legislature, I think that we could not do better than follow the Imperial Parliament ina matter such as/ this, because it will be conceded that they have had a great deal more experience of trade and commercial affairs than we can have, seeing that their trade is many times as large as ours. The feature of this definition is proprietorship or ownership.
– Of what?
– Of goods.
– Mr. Fletcher Moulton says that that is what it does not mean.
– That is the way in which I read it. He may have had something more in his mind.
– “Certification” does not mean ownership.
– I am talking of the ownership of goods.
– -The definition goes beyond ownership.
– The honorable member is speaking of some of the elements which enter into proprietorship.
– All that Mr. Fletcher Mou:ton says is that proprietorship does not mean ownership. A man who buys to consume cannot have a trade mark.
– I was inclined to take that view until I turned to the evidence taken before the Select Committee on the Trade Marks Bill. Mr. Fletcher Moulton, who was a member of that Committee, offered himself as a witness, in order that he might give evidence on the subject, and explained that he used the words “ they are the goods of .the proprietor of such trade mark “ to guard against appearing to mean that they were the property of that man. He said that they were his goods, not in the sense of being his property, because a man might put his trade mark on goods worth thousands of pounds without having a penny of interest in them.
– The distinction is a subtle, though, in my opinion, a real one. But I do not think that the explanation interferes -with my argument. The definition is intended to provide that the goods to which a trade mark is applied shall be the goods of the proprietor of such trade mark.
– Mr. Fletcher Moulton says that they need not be.
– The word “certification “ goes further than that.
– The definition, on the face of it, deals with ownership in connexion with manufacture. The effect of the ramifications of business transactions on that ownership is another and a distinct matter. I think the definition covers, and is intended to indicate, ownership in its broadest sense, whether ownership in the way of manufacture, or of purchase, or of dealing with or offering for sale. At some point there.must be ownership and proprietorship of the goods to which the trade mark applies. Therefore, I think that the union label provisions, which are quite foreign to the purpose of a Trade Marks Bill, should be dealt with in a separate measure. Moreover, since we are anxious to fall into line with the rest of the Empire in connexion with trade matters, and as it is part of the policy of this Government to assimilate our trade and commerce more and more with that of the rest of the Empire, to the exclusion of trade outside it, the nearer we can. assimilate our laws governing trade to the English laws, the better it will be. The broad point which I make is that the definition proposed by the honorable and learned member for Angas was adopted by the Imperial Parliament within the last six months. It must not be forgotten that they have very strong trade organizations in the old country. We were told the other night by the honorable member for Yarra that the union label is in use in Great Britain, and has had this and that good result, or, in other words, that it is operative. Yet there is no mention of it in the English’ Trade Marks Act, nor was any opportunity given for dealing with it when the Bill was passing through the House of Commons. I have not heard that the subject was raised then, although there is a good contingent of Labour members there who would have been likely to insist upon the matter being dealt with if they thought it proper to deal with it in such a measure. The fact that the sub ject was not raised is the clearest proof that they regard it as a matter which should not be dealt with in a Trade Marks Bill, but, if necessary, in a separate and distinct measure. I think that we cannot do better than follow Imperial precedent. The Attorney-General, in reply to the honorable and learned member for Corinella, said that if the definition were inserted it would be contended that it applied to the provisions of each of the Trade Marks Acts of the States. That might, perhaps., be so, if the definition clause did not commence with the words, “ except where otherwise clearly intended.”
– There would be no other place where it would1 be clearly intended to the contrary.
– I take it that it might be clearly intended to the contrary in any other part of the Bill. Personally I do not see that the adoption of the amendment would exclude the trade union provisions from the scope of the Bill, unless it can be argued that the words, “ except where otherwise clearly intended,” imply a limitation, and cover only matters germane to the Bill, and relating to trade marks pure and’ simple. Looking at them broadly, they might cover anything that might be put into the Bill. Indeed, I am at a loss to understand why these words are used in every definition clause. I take it that it is not good drafting to use such a provision, though I admit that some very eminent draftsmen have used it. They do not, however, seem to use such words in the English legislation, where the definni tions are very precise, as all definitions should be.
– They seem to give plenty of work to the lawyers in England as we do here?
– The lawyers make their own work. If a number of lawyers are let loose on the simplest matter, they soon make it appear difficult and occult. There is this clear distinction, between English Statutes and ours - that in the English Acts the definitions are clear and definite. One of the unfortunate results of making our definition clauses so loose and vague is that anything mav be introduced into a Bill. In my opinion, however, an Act of Parliament should be very precise, not only in its definitions, but also in its text. One measure should not re-enact the provisions of another. In this Bill, however, there are a number of the provisions of the
Commerce Bill. It does not seem fo me to be a very splendid thing to be continually re-enacting the same provisions. My idea is that we ought to adopt a very clear definition of trade mark.
– If we do not define it, the Courts will have to do so.
– If we attempt to define it, the Courts will still have to do so.
– To a ten times greater extent, if we adopt the proposed definition.
– At any rate, in the old country, where they have some able legislators, and some very good lawyers, they have deemed it advisable to adopt a very strict definition of “ trade mark “ in the measure they have passed this year. And since we profess to believe in the advisableness of assimilating our commercial laws and usages to those of the old country, we ought to follow the lead of the Imperial Legislature to the extent of defining “trade mark” as applying to the commercial concerns of the Empire.
– The honorable member for Parramatta apparently assumed that English legislation had confined the use df trade marks to those who owned the goods to which the mark was to be applied. If the honorable member had read the English Act, he would have noticed that it went a great deal further than that. The use of the words “ selection “ and “ certification “ in the amendment indicate that the English legislation goes much further than the honorable member would have us believe. There is a special section in the English law which permits trade marks to be applied to goods which are not the property of the owner of the trade mark, that is marks which certify to the quality or the standard of the goods to which they are applied. There are several kinds of marks specially mentioned in the English’ law which are beyond the ordinary definition of trade marks -if we are to accept the definition of the ownership of goods to which the mark is to be applied. If the honorable member will look at’ the English law, he will see that it goes a long way beyond the contention now put forward. Therefore, there does not seem to be any necessity to make the amendment.
– I do not “define “ proprietorship “ as relating fo the mak ing up or production of the goods. I mean ownership.
– But does not the honorable member see that a hall-mark which is intended to show the quality of jewellery is applied by the Goldsmiths and Silversmiths’ Association, who are not the owners of the goods?
– But they produce the quality, which is the very essence of the mark.
– No, they do not. They merely certify to its existence.
– They apply the standard of quality to the goods.
– No ; thev merely certify that such a standard of quality exists. They merely say : “ This watchchain, or this finger-ring, which has been submitted to us by Mr. Brown, or Mr. Jones, is of 18-carat gold, and we have put our legally-protected trade mark upon the jewellery, although we do not own it.”
– Why is the jewellery taken to be hall-marked in that way? Because the mark affords a guarantee as to quality, and so on?
– But it is not applied by the owners of the goods - that is the point. Therefore, the English law, both in relation to certification of the kind, and in regard to the Sheffield trade marks upon cutlery, goes a great deal further than the honorable member has assumed.
– The honorable member’s contention is no argument against the amendment, but is rather in favour of it.
– Not at all. I am argu-‘ ing against the contention of the honorable member for Parramatta.
– It is not against me at all. <.
– Then the honorable member must abandon his contention that a trade mark should be applied only by the owner of the goods.
– I say that the Goldsmiths and Silversmith’s Company, for example, has established ownership of some quality in the goods1.
– There is no ownership in the goods at all. The certificate is given by those who have no proprietary interest. Apart from that, I do not see any necessity for the amendment, because it seems unwise to limit in the manner proposed the meaning of “ trade mark.”
– Would the jewellery referred to be worth as much without the trade mark as with it?
– It might be; but, of course, the mark is a guarantee to the public as to quality, in the same way that a union trade mark would also be a guarantee to that section of the public that looked for it, that union labour had been employed, and that fair conditions of employment had been observed in the production of the goods.
– It will also guarantee that no non-union labour has been employed.
– I am perfectly prepared to arguethe question of boycott from the stand-point of the employer.
– The honorable member defends it.
– I do, under certain circumstances. I say that the employers are just as guilty as are the employes, and the honorable member ought to know it.
– I do know it. I do not defend it.
– Under some circumstances, the boycott is absolutely justifiable, and no community has been able to stop it ; but, as far as I am concerned, I should be very much better pleased if it were not used on either side. I do not see any necessity for the amendment.
Question - That the word’s proposed to be added be so added. - put. The Committee divided.
AYES: 0
NOES: 0
AYES
NOES
Question so resolved in the negative.
Amendment negatived.
Amendment (by Mr. Isaacs) agreed to - That after the definition “The Register,” the following words be inserted “‘Registered Trade Mark’ means a. trade mark registered under this Act.”
Clause, as amended, agreed to.
Clause 5 -
Subject to this Act, or any Act of the Parliament, the common law of England relating to trade marks shall, after the commencement of this Act, apply throughout the Commonwealth.
Provided that this section shall not prejudicially affect any right, privilege, obligation, or liability acquired, accrued, or incurred under the law of any State before the commencement of this Act.
– I take it that the definition of “ trade mark “ as prescribed in the Imperial Act will apply to this Bill ?
– No; that is statute law.
– The honorable member is not a lawyer.
– It is quite true that I am not a lawyer, but it is my duty to ascertain what the law means in this connexion. I am quite satisfied with the assurance of the Attorney-General that the definition of “trade mark” as prescribed in the Imperial Act will not apply to this Bill. I agree with the honorable member for Maranoa that it should do so, and I regret that he did not give his vote in accordance with his voice upon this matter.
– There is one word in this clause which I think ought to be excised. I refer to the word “prejudicially,” in line 5. The clause reads -
Provided that this section shall not prejudicially affect any right, privilege, obligation - but it scarcely fits the word “liability.” The intention of the provision is not to make a distinction between any right, privilege, obligation, or liability under the law of any State before the commencement of this Act. Therefore I move -
That the word “prejudicially,” line 5, be left out.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 6 agreed to.
Clause 7 -
State Trade Marks Act shall cease either; -
at the time when, under the State Trade Marks Act, the trade mark would, if after the commencement of this Act no fee for the continuance of its registration were paid, first become liable to removal from the register, whichever first happens.
Mr. CONROY (Werriwa). - I wish to know whether this clause preserves all the rights at present enjoyed by individuals under the State laws?
– This clause will put an end to the operation of State Acts.
– But assuming that under certain circumstances they are continued, what then?
– They cannot be continued.
– Does the fourteen years mentioned in this provision represent the ordinary life of a trade mark?
– Yes, unless it is renewed.
– This clause provides that the registration of a trade mark under a State Trade Marks Act shall cease either at the expiration of fourteen years from the commencement of the Act, or before that period if it expires, and, in the ordinary course, would require renewal. The person renewing a trade mark under those circumstances would require to renew it under the Federal Act.
Clause agreed to.
Clause 8 -
– I think that this clause is deserving of a good deal of attention at the hands of honorable members. Let us assume that a man in Queensland has registered a similar trade mark to that registered by an individual in South Australia, or another State. The clause reads -
Where the same trade mark, or a nearly identical trade mark, is owned or registered by another proprietor -
– I propose to insert the words, “ in any part of the Commonwealth” at that point.
– The clause provides that under such circumstances the trade mark may be registered, subject to such conditions as the Registrar, Law Officer, or Court thinks fit to impose to preserve the rights of each proprietor. Let us assume that certain trade marks have been registered in one of the smaller States, and that a registration in respect of the same mark has taken place in one of the larger States. When the Commonwealth is called upon to decide as between these persons, it appears to me that the individual who has registered the trade mark in the larger State might be given priority. But if we are guided by considerations of equity, it is impossible to say which individual should register.
– No difficulty will arise in respect of registrations in the same State.
– Of course, a trade mark is capable of registration year in and year out. Sooner or later we have to face this difficulty, “ Which trade mark shall prevail”? The word “Court” as it is used in sub-clause 3 means the High Court or the Supreme Court of a State. To my mind that is a very large definition. It seems to me that cases such as I have alluded to ought to be decided only by the Supreme Court.
– That would be very expensive.
– It is one of the difficulties that we have to meet.
Mr. JOSEPH COOK (Parramatta).Assuming that two men in different States register a similar trade mark under States laws, I taka it that this Bill will give one of those individuals a right to apply for the registration of his trade mark throughout Australia?
– It will not empower him to oust the man- who had registered in another State. It preserves existing rights.
– Does it preserve the individual’s right to use his trade mark in his own State?
– Yes, we desire to make the law uniform’ as far as possible, without disturbing existing rights.
– If it means anything, it means that the existing law is conserved.
– It may extend a trade mark to other States than that in which registration has been effected.
– I should have thought that the way out of the difficulty was to allow an individual a certain period within which to register his trade mark over the other States at a nominal cost. If he failed to do so, then another individual should have the right to register it.
– This clause, I take it, means that any State-registered proprietor of a trade mark may seek to come under this Bill, and so extend his registra-tion over the whole of the Commonwealth, but if a similar registration has been made by another individual in another State His extension shall except the area covered bv that registration. But what will happen if the Trade Marks Office is not aware of the other man’s mark - if, for instance, B, in Western Australia, has not brought it under the notice of that office? In that case, A might get his trade mark registered for the whole of Australia, although B really has the registered right in Western Australia for a considerable number of years to come.
– It would have to be advertised.
– But is there any power to secure a rectification of the register? I think that the Attorney-General ought to make provision for allowing the register to be rectified, especially in cases such as that to which I have alluded.
– I intend to move an amendment which, I think, will meet the case. It provides for the insertion in the register of any exception or limitation affecting the registration of a. trade mark which, in the opinion of the Court, ought to be covered.
– That mav cover it.
– I think it will.
– I do not think a correction could be made under that specific provision, because the rights are conferred “ by this section.”
– I am not sure that it does cover the case in question. This section purports to cover it, but I am not sure that when it specifically does so, a subsequent general clause may be invoked. I submit this point to the Attorney-General as a matter of immediate importance, and suggest to him that he will be able to recommit the clause if he thinks it necessary, to do so. At present, I think that it is desirable to insert either something showing that “the general rectification provisions shall apply to the correcting of an error of the kind I have mentioned, or some special provision. It is a matter which will require much attention in connexion with the administration of the Act if trouble is to be avoided. The subclause provides that -
The trade mark may be registered subject to such conditions and limitations as to mode or place of user or otherwise. …
Does the Attorney-General think that that would cover a condition being imposed by the Registrar that the registered proprietor - supposing that he had registered >for the Commonwealth from Victoria, and that there was a Western Australian registration which he was not allowed to override - should add some words showing that the trade mark did not prevail in Western Australia? Let me give an illustration of what I have in mind : Supposing that there was a trade mark, consisting of the letters “X Y Z,” registered in Victoria, in respect of knitting-needles, and that the same letters had been registered in Western Australia as a trade mark in respect of the same goods. Let us suppose, further, that the proprietor of the trade mark registered in Victoria got his mark extended oyer the Commonwealth, but that in the registration a limitation was made so that it should not apply to Western Australia. I take it that that would mean that the Victorian proprietor must not sell his goods under that mark in Western Australia. Does the AttorneyGeneral think it desirable that in such a case the proprietor should be called upon to add to the fetters ” X Y Z “ such words as “Not for Western Australia” ?
– I think that that comes within sub-clause 4.
– Would the effect of such a limitation be that the Victorian proprietor would not be able to sell his goods bearing the letters “X Y Z” in Western Australia ?
– I should think so.
Mr. CONROY (Werriwa). - To begin with; we find that under sub-clause 4 the Registrar, the Law Officer, or the Court may decide this matter as it stands.
– No; the Registrar will first decide. This will afford a cheap means of dealing with such matters.
– The question for consideration is, who is to secure the first right to extend his trade mark in one State to all the other States? Say that A has registered a trade mark in Victoria, and that B, who has registered a similar trade mark in Queensland, applies first for Commonwealth registration.
– Should they not both have rights in respect of the neutral States ?
– Supposing there were halfadozen such trade marks - one in each State - great confusion would arise.
– My point is : Who is to secure the right in respect of the Commonwealth ?
– I should say the first man to apply.
– Is the Committee going to say who shall have the first right, or are we to leave it to be determined by Judge-made law ?
– If the Attorney-General’s suggestion were carried out it would be rather hard on a man in Western Australia, who would be far away from the central office.
– There will be an office in each State.
– I am not suggesting that this is the fault of the draftsman. It is clear that we could not provide, in the circumstances I have named, that the man who first attempted to register such a mark in respect of the whole Commonwealth should have a prior right. I think a time limit should be imposed within which it would be assumed that all applications had been made. It seems to me that it would be reasonable to determine that the man who had registered first, in point of time, under the State law, should be entitled to priority of registration in respect of the other States. That would be a rough and ready way of determining, the matter, but certainly not more so than is the present system. I think that in the general run of affairs, practical justice will be meted out by allowing the man who has first registered under any State Act priority in other States.
– Whenever he may chose to apply ?
– We should have to impose a limit.
– If all other things were equal, would it be right to give priority to a man. who happened to register his mark, say, a minute before another applicant to register the same mark had come forward? Why should we not allow them to ballot, just as applicants for the one block of land haveto do, under the Land Acts of the States?
– We must endeavour to arrive at some finality in regard to this question. We are dealing now with cases in which two trade marks, both identical, have been registered under States Acts.
– I think that such cases would be very rare.
– I know of several such cases in connexion with the industry in which I am engaged.
– I have been told of half-a-dozen instances in which exactly similar trade marks are owned by different persons.
– There may be some such cases where businesses in different States have been sold to different proprietors. But, apart from such circumstances, I think that cases of the kind to which the honorable and learned member has alluded would be very rare.
– Such cases would be found more numerous than many of us imagine. Cases have been brought under my notice in which a trade mark registered by one person in one State has been registered by another person in a different State; but we have not yet attempted to deal with that phase of the question.
– I should like to put a supposititious case to the Committee. Let us suppose that A has registered a star as a trade mark for particular goods in one State, and that B has an identical mark registered in another State, in respect of the same goods. If those men were both trading in the other States of the Commonwealth, I do not think that either would have an exclusive right to the use of that mark.
– Probably because of common use. ‘
– Quite so. If one of them had the exclusive use of the mark, in all probability he would have registered.
– What does the honorable and learned gentleman mean by common use?
– That neither could stop the other from using the mark. Subclause s, as we propose to amend it, will provide for cases of that kind. Let us suppose that one man in New South Wales and another in Victoria had registered a star as a trade mark, and that both were trading over the rest of the Commonwealth. In that case, neither could oust the other, so far as the use of that mark was concerned from the other States, because its use would be common to both. But if one of them were trading alone in the other States, he would be the person who could secure registration.
– Supposing that he had not registered ?
– I think the chances are that he would have registered. If he had not, I suppose that the man who had got the user there would be the one.
– He would be registered after a given time had elapsed ?
– Yes. I think that is the way in which the matter would work out. I have made a note of the honorable member’s suggestion, and shall have no objection to recommit the clause, if necessary. I think, so far as I can judge, that we have adopted the best way of dealing with the matter, but if a better way can be suggested, I shall be glad to recommit the clause.
– Clause 8 allows the registered proprietor of a trade mark properly registered under the Trade Marks Act of a State to apply for registration under the Bill ; but a difficulty is created by the fact that in many cases the same trade mark has been registered bv different persons in different States. The Attorney-General has taken some pains to protect the rights of such persons, though he seems to think that such cases are not common. My own, experience tells me - and I have probably had as much experience in this matter as any member of the Committee - that they are common. I happen to know that a star - to take the illustration of which he made use - has been registered as a trade mark in several of the States. The question therefore arises, how are the rights of manufacturers in different States who have registered the same trade mark to be determined when application is made for a Commonwealth trade mark? Let me take a set of facts which are within my own knowledge. A was manufacturing in four States under several trade marks, all of which were registered in each of those States. His business was disposed of separately, B buying the New South Wales business, C the Victorian business, D the South Australian business, and E the Tasmanian business. The purchasers in two at least of the four States are trading with the remaining two States, Queensland and Western Australia, and have a common user of the trade marks in those States. It seems to me that it will be difficult to determine their rights when they apply for a Commonwealth registration. The Bill appears to protect their rights so far as the States in which’ they are manufacturing, and in which their trade marks are now registered, are concerned. But suppose they apply for a Federal registration to cover the States of Queensland and Western Australia, what will their position be?
– Neither could be given an exclusive right in the case of Queensland or Western Australia.
– If they both trade in those States?
– Yes. Their position will be the same as it is now.
– What protection will they have against other persons in those States ? Will they be open to competition, so far as their trade marks are concerned, in the States in which they are not now registered?
– Their position will be just the same as it is” now.
– No doubt all who are the proprietors of trade1 marks will endeavour to obtain a Commonwealth registration, but if the parties to whom I have referred apply for such registration, how will their rights be determined? Will other persons be allowed to compete with them in the States in which they are not registered, because neither can obtain registration in those States?
– Can other persons compete with them now?
– No, because other persons cannot manufacture now under, their trade marks in the States in which they are registered and send to Western Australia.
– It will be the same under the Commonwealth law.
– If the AttorneyGeneral could show us that, although such registered proprietors of trade marks will not be able to obtain registration for States in which they are not now registered, other parties will not be allowed to infringe their present rights, my opposition to the clause will vanish.
Mr. ISAACS (Indi- Attorney-General). - I do not appreciate the difficulty. It seems 1x> me that registered proprietors under States Acts will have the same protection under the Bill as they have now. Each will have an exclusive right to the use of his trade mark in the State in which it is registered, and where, as at the present time, they are trading on common ground in another State, they will be able to prevent any one else from fraudulently imitating their trade mark, and passing off his goods as goods of their manufacture. At the present time any one else would be prevented by the Courts from doing so. The honorable member must not confuse infringement of a trade mark with passing off goods as another’s manufacture. If A and B are registered in New South Wales and Victoria respectively, and are trading in Western Australia, they cannot now, and could not under the Bill, register their trade mark in Western Australia; but after the Bill is passed they will continue to enjoy their present rights, no more and no less. The whole difficulty lies in determining who shall have the right to register in a State in which no one has yet been trading ; but such cases will be very rare.
– The Registrar will decide that point.
– Yes. It will be a question of fact.
– Suppose that a star has been registered as a trade mark by two persons, one in New South Wales and the other in Victoria, and that a man is manufacturing in Western Australia under a star.
– Under a registered trade mark ?
– He could register in Western Australia
– He could not register there unless he were exclusively using the trade mark there. If other people were also using it, it would be common to the trade, and he could not monopolise it. The position under the Bill will be the same as the present position.
– I think that registered proprietors of trade marks should be protected, and that, in such a case as I have put, no trade mark should be registered in Western Australia to compete with theirs.
– The Courts will always protect registered proprietors of trade marks from persons who try to pass off goods as theirs.
– I hope that we shall be able to keep clear of the Courts. If persons registered in other States can certify that their trade marks nave been used in Western Australia, I think that they should be protected.
– The clause provides that the proprietor of a trade mark properly registered under the Trade Marks Act of a State may apply for the registration qf his trade mark under the Bill, and I understand that, if his application is granted, the registration will apply to the whole of Australia. But a person in New South Wales, and another in Victoria, might both have registered the same trade mark under the Trade Marks Acts of their respective States. If one of them applied for a Commonwealth registration, the other, knowing nothing of the application’, would he be given the exclusive right to use the trade mark throughout Australia, preventing the other from using it, first, in the State in which he was originally registered, and, secondly, in the remaining States?
– The clause preserves all vested rights.
– Then registration under the Bill would not destroy any existing right?
– No. Any man possessing; an exclusive right in one State would retain it.
Mr. G. B. EDWARDS (South Sydney). - The point I raised seems to be blindly provided for, but it is not clear how the clause will operate. Sub-clause 3 provides that -
The trade mark may be registered even if it does not contain the essential particulars required* by this Act, but subject, in that case, to such conditions and limitations as to mode or place or period of user as the Registrar, La-w Officer, or Court thinks fit to impose.
That may mean a great deal, or it may mean very little How will the Registrar deal with the claims of two persons hav- ing a registered trade mark in Victoria and New South Wales respectively, as to States in which they may have a common right of user? How will their claims to the use of the trade mark be protected against outsiders? If the Registrar had power to say that A and B having registered trade marks in Victoria and New South Wales respectively, .should have exclusive rights in those two States, but only rights in common in other cases, they would be protected against outsiders, but if there is to be a mere scramble for the right to register, some of those who have been using certain trade marks in common will suffer wrong. The -Attorney-General says that they will occupy the same position as at present, but that is not satisfactory. Unless those who have registered trade marks in, say, Victoria and New South Wales, are allowed to acquire rights in common in other States, it will be open to any merchant to deprive a Victorian manufacturer of the right to use a certain trade mark beyond that State.
– There will be no diminution of the rights at present enjoyed.
– But will any provision be made for the protection of those who have rights in common in certain States? I admit that such persons have no legal status at present, but as a matter of fact a number of manufacturers have common rights of user in regard to certain trade marks in States outside those in which they are the registered proprietors of such marks. I should think it would be possible to provide that, say, A and B could become the joint proprietors of a certain trade mark in States in which they had exercised certain rights of user. I think we should lay down some definite principle at law, in order to prevent litigation as much as possible.
Mr. ISAACS (Indi - Attorney-General). - I would point out to the honorable and learned member that we are merely transferring to Federal jurisdiction the rights existing under the States jurisdictions. It is intended to preserve intact every right that is now possessed under the States laws. The man who registers a star, say, in New South Wales, as a trade mark, is to keep it exclusively, and a man who has made a similar registration in Victoria is also to have the exclusive right to its use in that State. If there be any other State in which the trade mark has not been used, the person who has registered it in ohe State will have the right to extend his registration, but if other persons have been using it he is not to have the exclusive right to it. The Registrar will first of all determine on the facts whether or not any one else has been using the trade mark. If it has been used in common, no exclusive right can be granted.
– But how about the protection of common users against outsiders ?
– Thev will be protected if they are protected now. If the mark is common to the trade, any one can use it.
– Yes; but suppose that it has been in use by only two manufacturers ?
– I should say that if a manufacturer had not the right to register as exclusive owner of the trade mark, the Court would take good care to protect him from the unfair intrusion of others.
– But should not we make provision in that direction ?
– At present I do not know of any express provision in any Trade Marks Acf which allows two persons to be registered in regard to one trade mark.
– But we have not yet had experience of a Federal trade mark.
– I shall take the matter into consideration, and endeavour to see if we can frame such a provision to meet that case.
– The question of international reciprocity will also require to be considered, because otherwise we mav block the registration of trade marks from England.
– I shall consider the matter from that stand-point, and if it be possible to make the desired provision. I shall recommit the clause. I move -
That, after the word “ proprietor,” line 17. the following words be inserted “ in any part of the Commonwealth. “
Amendment agreed to.
Mr. CONROY (Werriwa).- Should we not fix some dme limit within which registration should take place?
– It is intended to give a man who has a trade mark registered under a State law an opportunity to come in and register under the Federal law.
– But some of the rights may hare a long term to run.
– None of them can run for more than fourteen years. They must then be registered under the Federal Act.
– We should still fix some time within which applications and appeals should be lodged. We will suppose a case in which the same trade mark is held by, say, A, in New South Wales, and B.. in Victoria. A’s right may expire within a year, whilst B’s may have ten years to come. A applies to the Registrar, who, without knowledge as to B’s registration under the State Act, may give him rights for the whole Commonwealth-. Would the Registrar have full power under clause 67 to correct the register?
– Yes. He would have unlimited power.
– But what protection will be afforded to B?
– The same protection that is afforded under the Patents Act. Advertisements will have to be inserted in all the States.
– That would be some protection, but I think we should fix a time.
– A great deal will have to be left to regulation.
– I trust that the regulations will be drawn up in such a way as to fix a time for registration, and also for the lodging of appeals against applications. I (hint that the regulations should be very liberal in that respect. Any person who has registered a trade mark under a State Act, anc! who does not seek to extend that registration to the Commonwealth, because the period covered by the State registration has not expired, ought to be liberally treated.
Mr. ISAACS (Indi- Attorney-General). - Clauses 79 and 80 give the widest powers as to registration. I move -
Th.it the words “ it may be registered with an exception as to that State,” sub-clause 5, be left out, with a view to insert in lieu thereof the words, “ the registration under this Act shall confer no exclusive rights in that State on the registered proprietor, and that State may be excepted from the registration under this Act.”
Amendment agreed to.
Mr. CONROY (Werriwa).- Does not the Attorney-General think that we should insert some definition of the term “ registered proprietor “ which would cover a registered proprietor under a State Act, as well as under the Commonwealth Act ?
– Will the honorable and learned member look at clause 70?
– That provision reads - Subject to this Act, the Court, on the application of any person aggrieved, or of the registrar, may order the rectification of the register. . . .
What is the meaning of “ any person aggrieved “ ?
– The Court would give the very widest interpretation to these words. They mean any person engaged in a business who desires to sell certain goods.
– I think that the clause means exactly what it says, and that provision has not been made for a registered proprietor under a State Act.
– Clause 70 applies to that.
– If the Attorney-General will make a note of my point, and enlarge that provision when we come to deal with it, I shall be satisfied.
– Clause 70 is a general pro> vision, which will apply to everything.
– My objection can be met by a definition of the term “ registered proprietor.”
– There is no definition of “ proprietor “ in the English Act, but he is identifiable from the general definition of trade mark.
– I have no desire to embarrass the Attorney-General. Will he promise to make a note of’ my point, and to deal with it later on?
– Yes, we can deal with it when we reach clause 67.
Mr. G. B. EDWARDS (South Sydney). - I think that the difficulty to which’ reference has been made could be better met in the interpretation clause The AttorneyGeneral might fairly promise to consider the particular points alluded to by recommitting that clause, with a view to laying down a definition of “ registered proprietor.” Under this Bill rights are given to registered proprietors to make application to the Registrar to get the registration of a trade mark altered. The term “ registered proprietor “ may have two meanings. The simplest meaning that could be attached toit would be that of a registered proprietor under this Bill. He would not be the individual who would most probably figure as= an objector to a registration under this measure. I think that the Attorney-General, if” he sees good ground for so doing, should, after we have discussed subsequent clauses, recommit the interpretation clause, with aview to inserting a definition of “registered’ proprietor,” which would include not only st registered proprietor under this Bill, but also a registered proprietor under a State Act.
– I have taken a note of that point.
Mr. LONSDALE (New England). - I think that something should be done to protect the rights of those who have registered under State Acfs. Honorable members will notice that as soon as a person registers under this Bill the registration of his trade mark under a State Act ceases. It seems to me that we should protect existing rights. In the interests of those who have registered under State Acts, it appears to me that an office should be provided in each State, at which they can register under this Bill.
– I think there should be only one office for registration; <but there might be other offices ‘for lodgment. *
Clause, as amended, agreed to.
Clause 9 -
– It seems to me that a verbal alteration is required in this clause. I therefore move -
That after the word “ The,” line 1, the word “ unregistered “ be inserted. .
– Does the AttorneyGeneral think that this clause is necesssary ? It seems to me that it introduces unnecessary complications. First of all, is there anything to prevent an unregistered proprietor of a trade mark in any State from applying, for registration under the Bill without the authority which’ is conferred bv this clause? I presume that the opponent could not set up the applicant’s own user against him.
– What does the honorable and learned member mean?
– If I were using a trade mark in a State, but had not registered it, I could apply to register it without statutory authority-
– The honorable and learned member will see that under this Bill he would have to comply with certain conditions.
– I am coming to that. Let us assume that there is an unregistered proprietor in a State. There is nothing to prevent him applying to have his trade mark registered under the Bill, altogether apart from this clause. The fact that he was using that .trade mark himself would not be a disability on application.
– No.
– Then sub-clause 3 provides that such a person can secure registration, although he does not comply with all the conditions that would be required of an applicant.. Let me state the case I wish to put : A is an unregistered proprietor of a trade mark in use, say, in Tasmania; and has never applied- to register it under the Tasmanian law, but because he has been using it in Tasmania, and his user there would protect him against any one else, another variety of trade mark is to be registered in spite of its non-compliance with the essential qualifications demanded by this Bill.
– Subject to limitations.
– Is there a right of user in an unregistered mark?
– Certainly. A man must not lead the public to believe, by the use of a mark, whether registered or ‘unregistered, that his goods are those produced by some one else. But the point is that we are going to allow unregistered marks to be registered, although they do not comply with the provisions of this measure - we are going to allow them to be registered merely because they have been used. I suggest to the Attorney-General that those who have been content with their user and have not registered! should be allowed “to rely on their user. They should not be permitted to register under this Bill a mark which, but for their user, thev would not be allowed to register. Let them register - now, if they wish to, but hereafter let the Commonwealth law .apply, so far as any unregistered mark is concerned. I fail to
– It is proposed to save the right of registration which he would have had under the States law.
– I doubt whether his right to register ought to be saved. It is all very well to give every protection to registered marks, and to provide for transfer from the State register to the Federal register with such limitations as may be necessary. But why should the Federal register be loaded up with marks which, “from the point of view of the Federal law, do not contain the necessary essentials? I do not propose to move an amendment, but point out that in sub-clause 4 we have limitations as to mode, place, or period of uSer. Why, I do not know, seeing that the question of a mark being in use in other States does not arise under that provision.
– Some one else might be the proprietor of a mark which was unregistered, and be using it in other States.
– Then registration under this Bill would not oust the other proprietor.
– Unless the limitation be given.
– We might provide that where a trade mark is registered, it shall not confer exclusive rights as against the unregistered proprietor, but my point is that it is unnecessary to cumber the register with another variety of mark, instead of endeavouring to secure uniformity. It seems to me that it is proposed to give to the unregistered proprietor more consideration than he is entitled! to receive. As long as- he is protected by his user in his own State, that is all that he should expect. If he wishes to register under this law he ought to so adapt his trade mark as to make it registrable.
Amendment agreed to. ‘
– I take it that the point that we should keep in mind is that we are not going to take away rights which now exist, and that we do not intend to have new registrations placed on the States registers. If we combine both those considerations, we shall recognise that we must adopt such a clause as this. A man may be carrying on business in, say, Tasmania, and be using a mark that he has not troubled to register. Registration is only a matter of evidence and of record. Tt does not give the registrar of the mark a right ; it only evidences the
Where the same trade mark or a nearly identical trade mark is owned or registered by another proprietor in any part of the Commonwealth in respect of the same goods, the trade mark may be registered, subject to such conditions and limitations as to mode or place of user or otherwise as the Registrar, Law Officer, or Court thinks fit to impose to preserve the rights of each proprietor.
This will carry out the same principle with regard to unregistered marks as we have . just observed with regard to registered marks. If we struck out this clause, the owner of an unregistered mark would have no power to secure its registration. As the States Acts would be inoperative, he would be in the unfortunate position of having a trade mark which he could mot register. Then, again, he might not be able to register under this Bill, because his mark might not answer to the description of a trade mark registrable under it.
– He would be in the same position as a man. who wished to register a new trade mark.
– He might be in a worse position. A man proposing to register, a new mark would be able to make a selection which would comply with the Act; but the owner of an unregistered mark might not desire to alter it. lest his doing so would interfere with his business. Our object is to preserve existing business rights.
Mr. JOSEPH COOK (Parramatta). - The Attorney-General has just told us that registration is a good thing for the purposes of evidence–
– And record.
– I take it that it is only evidence as from the time of registration.
– Yes.
– Supposing a man set up a prior right of user in one of the States in respect of a trade mark that had been registered. In that event the registration would be of no value as evidence of the use of the mark prior to registration.
– Only from the date of registration.
– Would registration prevent another person from coming in and saying, “ I have a right of user anterior to the registration of this mark.”
Mr. ISAACS (Indi- Attorney-General). - In such a case the person would have power in the first place to object to the registration, and also, within a certain time the right to apply to have the other man’s registration removed. I move -
That after the figure “ 4.,” line 6, the figure “ 4A “ be inserted.
Amendment agreed to.
Amendment (by Mr. Isaacs) proposed -
That the following new sub-clause be inserted : - “ 4A. Where the same trade mark or a nearly identical trade mark is owned or registered by another proprietor in any part of the Commonwealth in respect of the same goods, the trade mark may be registered subject to such conditions and limitations as to mode or place of user or otherwise as the Registrar, Law Officer, or Court thinks fit to impose to preserve the rights of each proprietor.”
– It seems to me that the amendment is somewhat similar to the provisions of the clause. I should like the Attorney-General to explain what will be its effect?
Mr. ISAACS (Indi- Attorney-General). - This clause is to allow the unregistered proprietor of a mark in a State to register under this Bill. We propose, by subclause 4A, to provide that if the same trade mark, or a nearly identical mark, is owned or registered by another proprietor in any part of the Commonwealth in respect of the same goods, the rights of both shall be preserved. Sub-clause 5 provides that where a trade mark, or a nearly identical trade mark is common to the trade in another State, it may be registered with an . exception as to that State Registration is to give no exclusive right as to that
State. But the new sub-clause deals with a case in which another man in another State has an exclusive right to a mark, and provides that the registration of the first applicant is to be subject to that exclusive right.
– The AttorneyGeneral has said that where two different persons have the right of user in two different States, the rights of both will be preserved.
– Two exclusive users.
– Will not this sub-clause lead to great confusion ? A trade mark registered under the Commonwealth law would extend over the whole of Australia.
– No. This is to prevent confusion. In the circumstances I have mentioned the registration is to apply, except in that State in which another man has an exclusive right. We have to preserve existing rights.
– Certainly.
– If A has an exclusive right in New South Wales, and Ban exclusive right in Victoria, and either registers under the Bill, he must register subject to the existing right of the other.
– I should like to know what will happen if the same or nearly thesame trade mark has been registered in two different States, and the proprietors apply almost simultaneously for registration under the Bill?
– That case is dealt with in sub-clause 4a.
– It seems to me that there will be a great deal of confusion, because a number of identical trade marks will be in forcewithin the Commonwealth.
– We must take facts as we find them, and protect existing rights. There will be no confusion in regard to new trade marks.
– What will be the position if a trade mark has been registered by one person in Queensland and by another in Victoria?
– The Queensland proprietor will have the right of sole use in Queensland, and the Victorian proprietor the right of sole use in Victoria”.
– The man who has registered in Queensland will not be able to use his trade mark in Victoria, and the man who has registered in Victoria will not be able to use his trade mark in Queensland?
– That will be so.
– What else could we provide for?
– I would give priority to the man who first registered under the Bill.
Amendment agreed to.
– Can an association or an individual appropriate a trade mark which has been in use for some time, but not registered ? For instance, Archdeacon Hindley last night spoke of a “ rooster with a purple comb,” thus unconsciously stealing my trade mark. I see that, under clause 22, the colour of a trade mark may be particularized, and I am willing that he should keep the purple rooster, if hewill let me have all the other colours.
Clause, as amended, agreed to.
Clause 10 -
The Minister for Trade and Customs or other the Minister for the time being administering the Department of Trade and Customs shall be charged with the execution of this Act. _
– I think that the clause should be negatived, because, in my opinion, the Minister of Trade and Customs is not the best Minister to intrust with the administration of this measure. I am not now referring to the qualifications of the present occupant of the office.
– The Patents Office is under the Minister of Trade and Customs.
– I do not think either the Patents Office or the Trade Marks Office should be under that Minister.
– Do not trade marks concern trade?
– Very remotely. I think that if the measure must be administered by some particular Minister, it should be placed under the AttorneyGeneral ; but it would be still better to put it into the hands of the Crown Solicitor.
– Would the honorable member make the Crown Solicitor independent of Ministers?
– Why not? A similar thing has been done in regard to other matters.
– The Attorney-General has to act judicially under the Bill as it stands.
– The Crown Solicitor could administer the measure if he were empowered to do so; but if a responsible Minister is deemed* necessary, I do not think that the task should be given to the Minister of Trade and Customs, who has already almost more work to do than any of his colleagues. Besides, the administration of this measure would raise highly technical questions, very different from those which are raised in connexion with the ordinary business of the Department of Trade and Customs, and, therefore, the measure, if it must be allotted to any one Minister, should be given to the Attorney-General. I think, however, that it would be better to leave it to each Administration to say what Minister should administer the measure.
– Would the honorable member hand over the Patents Office to the Attorney-General ?
– I think that the Patents Office would be better administered by the Attorney-General than by the Minister of Trade and Customs, because of the highly technical questions involved in its administration - questions very different from those arising in connexion with the importation or exportation of goods. It is. however, common in many of the States to allow Administrations to determine what Ministers shall administer particular Acts, and I would leave this measure to be dealt with in that way. Why should a layman like the present Minister of Trade and Customs be preferred for the administration of this measure to lawyers like the AttorneyGeneral or the Minister of Home Affairs ?
– He will always be able to get the advice of the AttorneyGeneral.
– That merely draws out the red-tape procedure, and makes it more difficult to do justice.
– Every Department has to seek advice from the Attorney-General.
– Certainly ; but in the administration of this measure the questions arising will bealmost exclusively such as could be dealt with only by the law officers of the Crown. It is only in an emergency that the Ministers of other Departments consult the law officers of the Crown ; but in the administration of this measure constant advice would be required on matters of a purely technical and legal nature. Therefore, I would leave it to each Administration to determine which Minister would most satisfactorily - because most efficiently and with most knowledge - administer the measure.
– I agree with the honorable member for Parramatta that this Bill and the PatentsAct should come under the immediate control of the law officers of the Crown. I do not desire to reflect on the present Minister of Trade and Customs, but I think that no occupant of that office, unless he be a legal man, would be able to satisfactorily administer these measures. Therefore I move -
That the words “ Minister of Trade and Customs, ot other the Minister for the time being administering the Department of Trade and Customs “ be left out, with a view to insert in lieu thereof the words “Attorney-General.”
– -The AttorneyGeneral is recognised in the definition clause.
– I think that the measure should be administered by him. When we come to deal with clause 11, I shall move, to provide that some one other than the Commissioner of Patents shall be Registrar of Trade Marks, because, as those who have gone thoroughly into the matter are aware, any number of technical and legal points will have to be settled, with which it will be very difficult for a layman to deal. c
– It seems to me that this measure, if any, should be administered by a man of legal training; and in Victoria it has been thought advisable not only to leave the administration- of the Trade Marks and Patents Acts to the Attorney-General, but to appoint as the permanent head of the Department an officer who has received a legal training. When the Federal Patent Office was established, a number of Patent Attorneys urged that the Commissioner should possess legal qualifications, because the questions that would come before him would require the application of a skilled legal mind. That course was not followed; and, although the present Commissioner is a capable and obliging officer, his want of technical legal knowledge is a great drawback. The Registrar of Trade Marks should certainly be a highly qualified lawyer. It is not sufficient that difficult points should be referred to the AttorneyGeneral. The natural tendency of officials is not to refer any but the most difficult matters to the law adviser of the Government, and it becomes the practice of individuals possessing no legal training to settle technical matters for themselves, and very frequently provoke litigation. We should follow in the footsteps of Victoria, and place the Trade Marks Office under the administrative guidance of the Attorney-General. I make no reflections upon the present Minister of
Trade and Customs, or his predecessors; but I contend that the Trade Marks Bill should be administered by the AttorneyGeneral, because many questions of an exceedingly technical character will have to be decided. This matter may seem of very small importance to laymen, but those who have any dealings with the office will find that it is in the highest degree desirable to have a lawyer at the head of affairs.
– Would the honorable and learned member separate the Trade Marks branch from the Patents Office?
– I should prefer to see the Patents Office placed under the administration of the Attorney-General.
– And the Customs Department, too?_
– No*; that would be unreasonable. The cases arising in the Patents and Trade Marks Offices will, for the most part, involve questions of law ; whereas any man of reasonable intelligence, and of an inquiring mind, could settle for himself most of the matters of fact which have to be dealt with in the administration of the Customs Department.
– Is the. honorable and learned member’s suggestion worth considering, unless we alter the present arrangement with regard to the Patents Office?
– It would be an easy matter to pass a short Bill providing that the Patents Office should also be placed under the control of the Attorney-General.
– Does not the honorable and learned member think th’at the permanent head of the Trade Marks branch should be independent of the Patents Office?
– I would place both offices under the control of the AttorneyGeneral. I am sure that all those who have dealings with the Patents Office would be extremely pleased if it were placed under the administration of the AttorneyGeneral. I hope that this suggestion, which is made in no’ hostile spirit, will receive a sympathetic reception at the. hands of the Minister.
– There are several reasons why the suggestion of the honorable and learned member should not be adopted. One which will strike honorable members at once is this: The law officer of the Crown will have to sit as a Court of appeal’ from the Registrar of Trade Marks,
– That .is the case in Victoria.
– Speaking from recollection, I cannot say that I remember any trade mark case that came to me during the several years that I was Attorney-General of Victoria.
– But references were very common in the case of patents.
– Yes. Very many cases of that kind have to be dealt with ; but I think it would be very improper for the AttorneyGeneral, knowing that there might be an appeal to him, to interfere in the administration before the appeal was made. If the Registrar happened to come to him for any directions he would refuse to give them. It would be improper to first give directions to the Registrar, who ought to decide matters for himself, and to afterwards Hear an appeal from his decision. Therefore, I do not think that anything would be gained by placing the Trade Marks Office under the administration of the AttorneyGeneral.
– Does the honorable and learned gentleman think that the appeal to the law officer is a good device?
– It has its good, as well as it’s bad points. Amongst other things, it offers a cheap and ready means of appeal. At present, patent attorneys can appear before the Attorney-General and represent their clients in appeal cases at much less cost than if thev had to employ solicitors and counsel to plead before the High Court or the Supreme Court. Although the present system may involve a duplication of appeals in cases where parties are not satisfied with the decision of the law officer, there are many advantages to be urged in its favour.
– If, under special regulations, patent attorneys were permitted to appear on appeals before a single Judge, expense might be saved and convenience served.
– I have looked into the matter, and so far as I can judge, the balance of convenience lies in the direction of allowing an intermediate appeal, and if an intermediate appeal lies, it will be wrong to introduce the Attorney-General as Dart administrator in cases which he would, afterwards have to decide on appeal, Clause 718s. which provides against the importa tion into Australia of goods with false trade marks; clause 78T, which relates to aiding and abetting offences; and clause 78u, which prohibits the importation, of fraudulently marked goods, will have to be administered by Customs officials ; arid it would be impossible for the AttorneyGeneral to carry out the purposes of the Bill unless he had such officers under his control. In view of the fact that the Patents Office is already administered by the Minister of Trade and Customs, and that the Trade Marks branch would be properly conjoined to it, I see no reason for departing from the scheme laid down in the Bill. It is all very well to say that we might pass a short Act, authorizing the transfer of the Patents Offide tto the Attorney-General’s Department,: but I should like to ascertain the views of the Patents officials before I acquiesced in a proposal of that kind. Certainly, unless the Patents Office were transferred to the Attorney-General’s Department, double expense would be incurred by placing the Trade Marks branch under his administration. The AttorneyGeneral is always available to advise the Minister of Trade and Customs, who has his own officers to look after matters of detail. It would not be right for the Registrar to ask the Attorney-General how he should decide in a particular case; and if that were not done there would be no need for the Attorney-General, or any other Minister, to pay attention to the affairs of the office, so long as the Minister of Trade and Customs was willing to exercise his supervision.
– The last statement of the Attorney-General appears to me to contradict his assertion to the effect that the Registrar should not come to the Attorney-General for advice. He says that the Attorney-General is always available to advise the Minister - or, in other words, that the Registrar may go to the Minister, and that the Minister may then seek the advice of the Attorney-General.
– Certainly not.
– In view of the fact that the whole of the Trade Marks Departments of the States will have tobe taken over and new legislation applied to the existing conditions, a number of difficult legal questions are bound to crop up, and it is desirable that the advice of the AttorneyGeneral should he available in connexion with the administration of the Act. According to the Attorney-General, instead of coming directly to him, the Registrar will have to seek a roundabout way of obtaining his advice.
– No. There are many cases which the Minister would attendto without any reference to the Attorney-General.
– It appears to me that some form of appeal should be provided in this Bill.
– In that case we should have to send the parties to Court in every case, and that would be a very expensive proceeding.
– I do not think so. In my opinion the proper person to administer this Act is the Attorney-General. Under all the circumstances, however, it would probably be better to omit the whole clause, and to allow Ministers to decide the matter amongst themselves.
Mr. ROBINSON (Wannon). - Further debate upon this question could be avoided if the Attorney-General would agree to adopt the form of wording which is employed in section 9 of the Patents Act, which reads -
The Minister for the time being administering the Department of Patents shall be charged with the administration of this Act.
If similar language were employed in this Bill it would be within the power of the Government of the day - without any special Act of Parliament - to so rearrange business that the Attorney-General should administer this Act.
Mr. Isaacs. There was no objection to that form of wording when the Patents Act was passed, but since then it has been determined to place the administration of that measure under the Minister of Trade and Customs. He will be charged with the administration of this Bill, as a natural consequence.
– That is no answer to my suggestion. It is quite possible that some other Minister may come into office who may think it desirable to follow the ordinary State practice under which the Attorney-General would administer the Trade Marks Act.
– It seems to me that section 9 of the Patents Act affords us, a very good example, and one which we ought to follow.
– Why not follow the English precedent?
– Because in Australia a great deal is left to the Minister for the time being, whereas in England a totally different system has grown up - a system under which the Under-Secretaries practically exercise full control over everything relating to their Departments. At present the Minister of Trade and Customs has sufficient time at his disposal to enable him to deal, not only with patents, but with trade marks. But, as the years pass, he may not have time to attend to those matters. Moreover, the creation of fresh Departments may render the appointment of additional Ministers necessary, and therefore, it is very desirable that the Attorney-General should have power to deal with this matter without the necessity of passing a special Act of Parliament. If we look ahead halfadozen years, the suggestion which has been made must be regarded as a wise one. My point is that we should not take away from the Executive for the time being, the power to say to which of their members they shall delegate the administration of certain Acts.
– Does the honorable and learned member wish to set up a new Department of trade marks?
– No. As matters stand it will be merely a sub-Department. I desire to give the Executive for the time being the power to absolutely delegate the administration of this, Department to any Minister that they may please.
– I would point out to the honorable and learned member for Werriwa that, before another Ministerial office can be created, a special Act of Parliament must be passed. When a proposal to that effect is submitted, it will be time enough to deal with this question. My own opinion is that for many years the permanent head of the Customs Department mustcontinue to be the best person to whom the Commissioner can appeal for information upon any matter affecting either trade marks or patents. The honorable and learned member for Werriwa must know that there are many reasons why officers in the various States are frequently removed from the control of one Minister to that of another. I do not know that the system is a good one–
– That is a matter which must be determined by experience. We have not that experience, and yet we propose to act in opposition to the experience of some of the States.
– Upon intricate legal questions the Crown Law Officers can always be appealed to. In my opinion all these matters should reach the Minister through the permanent head of the Department of Trade and Customs.
Mr. CONROY (Werriwa). - I would point out to the honorable member for Wide Bay that the experience of New South Wales and Victoria is quite contrary to the. contention which he has put forward. Those States have refused to hand over the administration of their Trade Marks Acts to the Minister whom he thinks is most fitted to take charge of them.
– Does not the honorable and learned member know that in some of the States the Department of Trade and Customs was under the control of the Treasurer ?
– Yes, in States where there are only three or four Ministers. Judging by the experience of the two most populous States, we are not selecting the most suitable Minister to administer this Act. My contention is that we should not lay down a hard-and-fast rule placing the administration of the Bill in the hands of one Minister when experience may show that it is more desirable to place it under the direction of another.
Mr. WILSON (Corangamite).- I recognise the force of the Attorney-General’s contention that clauses 78s, 78T,and so forth, indicate the desirableness of placing the administration of the Bill under the Department of Trade and Customs, rather than that of the Attorney-General ; but I think that the honorable and learned member for Wannon has shown that it would be well to so amend the clause as to bring it into conformity with section 9 of the Patents Act. If that suggestion be adopted, I shall be prepared to withdraw my amendment. It will then be open to the Government of the day to determine what Minister shall be chargedwith the administration of the Act. Without desiring in any way to reflect on the officer in charge of the Patents Office, for I know that he is a capable man, I think that it would be well to have a lawyer in charge of the Trade Marks Office.
– That question should be raised on clause11. The honorable member has agreed that the provisions of subsequent clauses show that the Act ought to be administered by the Minister of Trade and Customs.
– I hold that it should be open to any Government to transfer the administration of the Act to another Department, if that course were deemed desirable.
Amendment negatived.
Clause agreed to.
Clause 11 (Registrar).
– The AttorneyGeneral, by interjection, has referred to the probability of our having in each State a sub-office of the Department of Trade Marks. I do not see any provision in the Bill to provide for that. Clause 11 sets forth that the Commissioner of Patents shall be the Registrar of Trade Marks, and authorizes the appointment of a deputy registrar. Then clause 12 provides for the establishment of the Trade Marks Office. Turning to clause 4, Ave see that reference is made to “ the ‘ ‘ Trade Marks Office, and to “the “ State in which the Trade Marks Office is situate. It would thus appear that provision is made for only one office. I draw the attention of the AttorneyGeneral to this point, in order that he may make the amendments necessary to carry out the purpose which he indicated.
– It is true that I made the interjection to which the honorable and learned member has referred, and I think that it would be only proper to have in each State an office where applications to register trade marks could be lodged. But I see great difficulty in providing a staff of officers in each State to deal with these matter!* There must be a central office for that purpose, but there ought to be an office in each State where applications might be lodged. Applicants may consider it desirable to send in their applications to the head office. In my opinion, that would be the more expeditious and secure course to adopt.
– We could use the Patents Office in each State.
– Either that or some other arrangement might be made to give effect to the idea. The provision of an office in each State might have an important bearing on the question of priority.
– That is my view.
– I will make a note of the point, and see how far the suggestion can be welded into shape.
– Will not the AttorneyGeneral consent to make the necessary amendments in this clause?
– It is a difficult matter to deal with, and I would prefer to recommit the clause. I will see that something of the kind is done, although I make that promise subject to what the Minister of Trade and Customs may say. I see no objection, but must take the opinion of my honorable colleague, who is absent, with regard to it.
– The AttorneyGeneral promised, when we reached this clause, to consider the desirableness of placing the administration of this measure in the hands of a lawyer, instead of the Commissioner of Patents, who is not a member of the legal profession.
– Under sub-clause 2, we must start by placing the Bill in the hands ofthe Commissioner of Patents. Then the Governor-General may, at any time, “ otherwise determine”
– What I want to show is that the administration of such a technical measure as this is–
– It is not nearly so technical as is the Patents Act.
– The honorable and learned member for Wannon has been showing that, in the opinion of those having business to transact with the Department, the Commissioner of Patents ought to be a legally qualified man. It is almost impossible for a gentleman having no legal training to deal with patents and trade marks.
– I know of men who, although they are not lawyers, have a better knowledge of the patents law than have most legal men.
– It is a very good rule to give all the good billets to the lawyers.
– I am not regarding the matter from that point of view. My contention is that if the administration of this measure were placed in the hands of a lawyer, the procedure would not only be expedited, but cheapened, to the great advantage of thepublic. I am also of opinion that we should provide for the appointment of a deputy registrar in each State.
– I trust that the Committee will not insist upon any duplication of machinery in relation to this measure. It has been stated by at least some honorable members that the machinery necessary for the administration of this Bill can be provided almost entirely by the present officers in the Patents branch. To begin by appointing a lawyer as Registrar of Trade Marks, and also appointing a deputy registrar in each State, would be to bring about such a duplication of machinery as would cause the taxpayer no little alarm. I trust that the AttorneyGeneral will give the matter very serious consideration before he agrees to such a duplication.
– There is no intention to provide for such a duplication. I have simply spoken of having an office in each State, where applications might be received.
– It would be very easy to arrange for the lodging of applications at one of the Commonwealth offices already in existence.
– That is all I asked.
– The honorable member for Corangamite seems to consider that we should have a separate Department of Trade Marks in each State.
– No. My chief contention is that a trained legal man should be appointed as Registrar of Trade Marks.
– As a representative of the economical State of New South Wales, I must protest against these extravagant notions on the part of the representatives of Victoria - notions, which, if carried out, would tend to the detriment of the Commonwealth.
– I am sure that many lawyers would object to the appointment of a legal man as Registrar of Trade Marks, for the obvious reason that the non-legal man in such a position admits as evidence such extraordinary matters that in nine cases out of ten appeals necessarily follow. Therefore, nine times as much work is given to the lawyers as would otherwise be given.
– Did the honorable and learned member ever know an Act in connexion with which there was no possibility of work being given to lawyers?
– Where a man of good legal training is given the administration of an Act, there is not much opportunity for appeal.
– No two legal men ever agree.
– That is where the construction of an Act is faulty. But where the provisions of a measure are clear, a man of common sense can interpret them. Lawyers are trained to read sense into provisions which often, as they stand, are mere nonsense. If a legal man were put at the head of this office, he would not give many opportunities for appeal.
– There are many men in the Commonwealth who are experts in connexion with trade marks, but are not legal men.
– They have legallytrained minds, and will be recognised by lawyers as possessing full knowledge of the subject.
– The practical man is always to be preferred to the lawyer.
– In administering a measure of this kind, a man would always have to be guided by previous decisions. Of course, trouble occurs when one is asked to construe an Act of Parliament the meaning of which is obscure. In such a case, a man finds it difficult to make up his mind, because Parliament did not express its mind. The lawyers ought to be thankful to the honorable member for Bland for saying that he does not want a man with legal training at the head of this Department.
– I want a practical man, whether he be a lawyer or not.
– A practical man will have a knowledge of the cases which have already been decided.
– He will have a special knowledge of trade marks work.
– A layman may have as good a knowledge of this subject as a lawyer. Law is only trained common sense; though when a lawyer has to interpret an Act of Parliament, he becomes a wordsplitter, because, out of respect to a Legislature, he has to try to give meanings to provisions, which, owing to the incapacity of that Legislature, possess none.
Clause agreed to.
Clause12 (Trade Marks Office).
– It seems to me that provision should be made for the establishment of an office in each State, and that the time at which an application is lodged at that office should be regarded as the time at which it reaches the central office.
– I think that there should be an office in each State where applications may be lodged for transmission to the central office, though I do not think that it would be possible to deal with applications in the State offices. As I shall not be intrusted with the administration of the measure, I cannot give a final answer to the honorable member’s question ; but I shall make a recommendation to my colleague on the subject.
– I think that it is important that the time at which an application is lodged in the State office shall be taken as the time of its being lodged at the central office.
– I have made a note of! the honorable member’s suggestion.
Clause agreed to.
Clause 13 -
There shall be a seal of the Trade Marks Office, and impressions thereof shall be judicially noticed and admitted in evidence.
Amendment (by Mr. Isaacs) agreed to - That the words “ and admitted in evidence “ be left out.
Clause, as amended, agreed to.
Clause 14 (Proclamation and effect of transfer of administration).
– I should like to know the meaning of the words in paragraph a -
The Registrar shall collect for each State the fees which become payable.
I understand that this will become a transferred Department, and must be administered on the bookkeeping system; but the existing rights referred to in the clause may continue for a number of years after the bookkeeping system has ceased. Why is it that provision is not made for debiting the expense of collection to the States, since the fees are to be credited to them?
, - The bookkeeping system to which the honorable member refers is not the bookkeeping system provided for in the Constitution. The expense of collecting these fees will practically be nothing. The provision is similar to that in the Patents Act. When the Bill comes into force, the Trade Marks Acts of the States will be administered by the Commonwealth. Those Acts will have force for a period not exceeding fourteen years, in order to preserve existing rights. There may be fees payable in respect of pending proceedings, or to give effect to existing rights, though I do not suppose that they will amount to much, and the Commonwealth will collect them for the States. With regard to the commencement of the Act, honorable members will recollect that we amended clause 2 in order to provide that the Act shall commence on a day to be fixed by proclamation, not less than six months after its passing; but I understand from the Minister of Trade and Customs that the Department can be organized very much sooner than that, so that we may have to recommit the clause, in order to shorten the period provided for.
Clause agreed to.
Clause 15 agreed to.
Clause 16 -
The essential particulars of a registrable trade mark shall be one or more of the following particulars : -
A name of a person printed, impressed, or woven Hn some particular and distinctive manner ; or
A written signature or copy of a written signature of the person applying for registration thereof or his predecessor in business as a trade mark; or (c) A distinctive device, mark, brand, heading, label, or ticket; or (d) An invented word or invented words; or (e) A word or words having no reference to the character or quality of the goods and not being a geographical name used or likely to be understood in a geographical sense.
Amendment (by Mr. Isaacs) agreed to - That after the word “ person,” paragraph a, the words “ or trading style,” be inserted.
– The English Act uses the words “ or some predecessor in his business “ where the Bill contains the words “ or his predecessor in business,” the reason doubtless being to make it clear that any predecessor is meant, because there may have been more than one devolution of a business. I therefore move -
That the words “ his predecessor in,” paragraph i, be left put, with a view to insert in lieu thereof the words “ some predecessor in his.”
Amendment agreed to.
Amendment (by Mr. Isaacs) agreed toThat the words “ as a trade mark,” paragraph 6, be left out.
Mr. McCAY (Corinella).- Paragraph e, although its object is similar, differs in verbiage from the English Act. The Bill reads : “ A word or words having no reference to the character or quality of the goods”; .whereas the English Act says: “ having no direct reference.”
– I do not understand the word “ direct.” There is no explanation given with regard to it.
– I was puzzled to know what “ direct reference “ meant. Then the clause reads, “ and not being a geographical name used, or likely to be understood in a geographical sense,” whereas the English Act says, “ not being, according to its ordir-nary signification, a geographical name.”
I should like to know what is a geographical name used in a non-geographical sense?
– Suppose that a shoe not made on the Danube were called a “Danube “ shoe, the name would not be used in its geographical sense.
– 1 have always understood that the idea was to prevent the regis tration of geographical names. If you were permitted to call a shoe a “ Danube “ shoe because no shoes were manufactured there, you would have to discontinue that description as soon as shoes were made there. I prefer the simple and direct prohibition provided for in the English Act.
. -There is a prohibition in existence against the use of a geographical name as a trade mark, for the reason that no one has the right to appropriate a name or word that belongs to what one learned Judge called “ the great common of the English language.” It would not be fair, for example, to grant an exclusive proprietary right to the use of the word “ Melbourne,” as applied to soap made in that city. Some words that are geographical names may be used in certain collocations, because they do not convey a geographical signification. I think it was Lord Justice Fry who said that “ Monkey soap “ was a good term for a trade mark, because although there was such a place as Monkey Island, there could be no confusion between the trade article and the geographical name. In another case, a certain whisky was branded “ Magnolia,” and as there was a town of that name in the United States, it was actually argued that that name could not be used. I must say that I prefer the language in the Bill, because I think it is more easily understood than that adopted in the English Act. It is verv difficult to say what is the ordinary signification pf a geographical name. I think that the true test is whether a name used in connexion with goods is likely to be understood in a geographical sense.
– I had made .1 note of the words referred to; but I think the clause, as it stands, is certainly as clear as the wording of the English Act. The words now embodied in the English Act did not occur in the Bill of 1904, but they have apparently been adopted on the recommendation of experts. I have an amendment to suggest which will bring the clause more into fine with English legislation. X propose tq define the word “distinctive” as follows : -
For the purposes of this section “ distinctive “ shall mean adapted to distinguish the goods of the proprietor of the trade mark from those of other persons.
After providing for the particulars essential to an application to register a trade mark, the English section ends up by referring to “any other distinctive mark.” That is an indication that the earlier marks which are specifically mentioned are also distinctive marks. The word “distinctive” is defined in the English Act in the terms I have adopted, which indicate that the mark must be connected with the proprietorship of the goods - as I contended when we were dealing with the definition, of “trade mark.” I suggest that the words proposed be inserted, because they will certainly assist to keep our legislation in accord with that of Great Britain. As this clause is not applicable to union labels, it appears to me that there can be no objection to inserting the words proposed.
– Not on that ground.
– There is no necessity to vary the language of the clauses which do not apply to union labels. If the AttorneyGeneral will accept the amendment, I shall move it ; but otherwise I do not want to prolong the debate.
Mr. ISAACS (Indi- Attorney-General). - This is a very difficult question, and I am not prepared to accept the proposed definition at this stage. I would not like to say that it is wrong, but there are so many decisions as to the real meaning of “distinctive” that I am not prepared to agree to the amendment without full consideration. The honorable and learned member knows that there is no record of the reasons which actuated the House of Commons in making some of these amendments, apparently at the very last moment. I do not know how far the proposed definition would alter the meaning of the word under our law, and I desire to keep as closely as I can to the decisions of our Courts, in which the word “distinctive” is clearly understood.
Mri Glynn.- Kerly, the text writer, makes a statement which practically covers this definition.
– Notwithstanding that, I think Aye can leave the word “distinctive” as it is. I have looked very carefully through the English Act, which contains many alterations which mav or may not be departures from the ordinary law. The honorable and learned member proposes that the word “distinctive” shall mean “adapted to distinguish the goods of the proprietor of the trade mark.” Mr. Moulton did not think that that implied the proprietorship of the goods.
Mr. GLYNN (Angas).- The English Act clearly limits the definition to the proprietorship of goods. There is no doubt that the clause as drafted widens the scope of the Bill. As the Bill is drafted, it might possibly include trade union labels, but if the definition were embodied in the measure, trade union labels could not be included in its scope. The Attorney-General has referred to the distinction between proprietorship and ownership. The effect of Mr. Moulton’s remarks was that a man might be a proprietor so far as proprietorship is understood in connexion with ownership of the trade mark without being the actual owner of the goods. In the sense of the trade marks law the proprietor of any goods by virtue of their manufacture - although he might have parted with their actual ownership by selling to a retailer - would still retain the trade mark. However, I do not wish to press the amendment if it is not acceptable to the Attorney-General.
-! think that the definition suggested should be inserted. In the interests of laymen it is advisable that this Bill should be drawn as clearly as possible. I do hope that the Attorney-General will .see his way to accept the suggestion of the honorable and learned member for Angas.
Mr. McCAY (Corinella). - I wish to draw attention to a fact in connexion with one or two subsequent clauses, which, at first sight, appears to evidence some inconsistency in drafting. Although the word “ distinctive “ is used only twice in clause 16, in clauses 21 and 22, which are taken from the roo4 Bill of Mr. Fletcher Moulton, the word “distinctive-“ is used in a. much more general way. I venture to say that in those provisions the use of that word is not intended to be limited to the two cases mentioned in paragraphs a and c of clause j 6, but is intended! to be used in connexion with a trade mark containing any of the essential particulars which are there enumerated. To mv mind, it evidences an omission in draftsmanship that, while clause 16 has been altered so that the word “ distinctive” does not cover the whole provision as it does in the English Act, clauses 21 and 22 imply that that is intended.
– If the honorable and learned member will look at the English Act he will observe that sub-sections 1, 2, ?, and 4 do not contain the word “ distinctive.”
– But sub-section 5 contains the words “ any other distinctive mark,” which imply that sub-sections 1, 2, 3, and 4 also relate to distinctive marks. But under this Bill it appears to me that, whereas possibly paragraph a - and certainly paragraph c - of this clause would be governed by considerations of what is distinctive as set forth in clauses 21 and 22, those clauses would not govern paragraphs b, d, or e. That fact evidences that departures from the English law have been made in clause 16, without corresponding alterations being effected in clauses 21 and 22.
– I think that the clause is all right.
– I contend that the words, “any other distinctive mark,” which are contained in sub-section 5 of the English Act, necessarily imply that sub-sections 1, 2, 3, and 4 are also “ distinctive.” Clauses 21 and 22 of this Bill do not control the determination of anything in clause 16, except, perhaps, paragraph a, and certainly paragraph c, whereas they ought to control them all. A trade mark which is not distinctive ought not to be registered as such. I am not prepared to suggest the exact verbiage of an amendment at the present moment, but I think there is reason for first giving a meaning to the word “ distinctive,” in clause 16, and then for inserting some words which will make it apply to all the subsequent paragraphs of that provision. Under the Bill in its present form, clauses 21 and 22 would apply to some trade marks, and not to others - a curious distinction which does not exist in the English Act, and which does not arise specifically under some of the States Acts. Will the Attorney-General explain what is the meaning of the word “ other “ in subsection5 of the English Act.
Mr. ISAACS (Indi- Attorney-General). - The honorable member is aware that the English Act is a new one, and that it is a little presumptuous on my part, therefore, to interpret its meaning. But it strikes me that the name of a company, individual, or firm represented in a particular manner must necessarily be distinctive. So with subsections 1, 2, 3, and 4. They are necessarily distinctive. The Act then provides for “any other distinctive mark,” with certain exceptions. It makes provision for old marks if they are special or distinctive. The meaning of the word “ distinctive “ is defined. The same mode of argument is applicable to this Bill. Paragraphs a, b, d, and e are necessarily distinctive. Then we may devise as essential particulars of a registrable trade mark a device, mark, brand, heading; label or ticket, so long as. it is distinctive. I think that the provision works out in the same way as does that of the English Act.
Clause, as amended, agreed to.
Clause 17 agreed to.
Clause 18 -
Except in the case of a trade mark properly registered in any State under a State Trade Marks Act, a registrable trade mark must not contain -
the words “ Trade Mark,” “ Registered,” “ Registered Design,” “ Copyright,” “Entered at Stationers’ Hall,” “To counterfeit this is Forgery,” or words to the like effect; or
a representation of the King, the Queen, or any member of the Royal Family.
. The honorable and learned member for Northern Melbourne has drawn my attention to the words “entered at Stationers’ Hall,” which appear in this clause, and which, in his opinion, have no significance in Australia, and are, therefore, unnecessary. I do not know whether they are likely to be used under any Trade Marks Act. If they are not, I shall be willing to strike them out. I shall be glad to have the assistance of honorable members on this point. If they think that such words might be registered–
– Cannot an English manufacturer register here?
– He can.
– That being so, it seems to me that the words should be allowed to remain.
– Very well. I move-
That the following words be added : “or of the Royal crown.”
I propose this amendment for the reason that the honorable member for North Sydney stated a few evenings ago that he was under the impression that in several States a representation of the Royal crown is registered as a trade mark. I do not think that such a representation ought to be taken as a trade mark, except in the case of a trade mark properly registrable in any State under a State Trade Marks Act.
– Lassetter, of Sydney, uses such a trade mark.
– If that be so, I think we ought to preserve existing rights. It is for that reason that I propose to transfer these words from clause 19 to clause 18.
– In section 68 of the English Actthere is this proviso -
Provided that nothing in this section shall be construed as affecting the right, if any, of the proprietor of a trade mark, containing any such arms, device, emblem, or title to continue to use such trade mark.
The Attorney-General, however, would limit the protection of such trade marks to those properly registered in any State under a State Trade Marks Act.
– We conserve their rights if they are registered under a State Trade Marks Act.
– But what if they are not registered?
– In that case I would not allow such a mark to be registered. No one has a right to appropriate a representation of the Royal crown for any particular goods.
– But some persons might have been using such a mark for fifty years.
– Under this Bill they will be able to continue to do so. This will only prevent their obtaining an exclusive right to its use.
Amendment agreed to.
– I move-
That the following new sub-clause be added : - “ (c) A representation ofany living person without his written consent.”
I do not think that some of the caricatures that are used for the purposes of advertisement should be permitted, unless with the express authority of the persons concerned. It was only the other day that the Premier of Victoria made strong representations in regard to a caricature of a public man which appeared on the hoardings of this city, and I know that many people shared his objections to it. Many caricatures are in the highest degree ridiculous and absurd, and I do not think that advantage should be taken of our public men in such a way without their express consent.
– The caricature to which the honorable member refers was an advertisement. It was not a trade mark.
– But what is to prevent a man from appropriating as a trade mark a particularly funny caricature of an individual. I therefore trust that the Committee will accept this amendment.
– I would suggest to the honorable member the desirableness of moving his amendment in the next clause. He would then secure a total prohibition.
– I thank the honorable and learned gentleman, for his suggestion ; I shall adopt it.
Amendment, by leave, withdrawn.
Clause, as amended, agreed to.
Clause 19 -
A registrable trade mark must not contain -
a representation of the Royal Arms, or of the Royal crown, or of the national flag of Great Britain or of the flag of the Commonwealth or of the national arms of Great Britain or of the arms of the Commonwealth or any State.
Amendments (by Mr. Isaacs) agreed to -
That the words “ or of the Royal crown “ be left out.
That the words “ Great Britain,” line 4 and line 6, be left out, with a view to insert in lieu thereof the words “ the United Kingdom.”
That after the word “ arms,” line 6, the words “ or seal “ be inserted.
Amendment (by Mr. Joseph Cook) agreed to -
That the following new sub-clause be added : - (c) a representation of any living person without his written consent.
– I should like to learn from the AttorneyGeneral whether it would be right to invalidate a trade mark when it contained something else beside the devices prohibited by this clause. Suppose, for instance, that a trade mark had for its centre-piece the lion and the unicorn, or the arms of the Commonwealth, why should it not be possible for the applicant to omit those parts of the design, and to secure registration of the remainder?
– That may be done. The person concerned will be able to take out such parts and register the rest of the design.
Clause, as amended, agreed to.
Clause 20 (Scandalous and improper marks).
Mr. JOSEPH COOK (Parramatta).We have in this clause a very proper prohibition of any offence against morality - a prohibition which should, and no doubt does, find a place in every Trade Marks Bill. But I wish to know why this prohibition is not to apply to all labels and marks dealt with in the Bill. For instance, this provision is not to apply to the union label clauses. That, I presume, is an oversight.
– I have no objection to an amendment.
– Will the honorable and learned gentleman undertake to apply this prohibition when we reach the clauses ?
– Yes.
Clause agreed to.
Clause 21 -
In. determining whether any particular of a trade mark is distinctive, regard may be had, in the case of a trade mark in actual use, to the extent to which user has rendered the trade mark or the particular distinctive for the goods with respect to which the trade mark is sought to be registered, but subject to this section, a pictorial representation of goods or words having reference to the character or quality of goods shall not of themselves be deemed distinctive.
– Although the last three lines of the clause were in Mr. Fletcher Moulton’s Bill of 1904, on which this measure seems to have been based, they do not appear in the Act of 1905, though I do not know why they were omitted. Have they been intentionally left in the clause ?
– They are .puzzling words, and I shall be glad to omit them. I therefore move -
That the words “ but subject to this section, a pictorial representation of goods or words having reference to the character or quality of goods shall not of themselves be deemed distinctive,” be left out.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 22 amended to read as follows, o and agreed to -
A trade mark may be limited in whole 01 in part to a particular colour or colours, and in case of any application for the registration of a trade mark, the fact that the trade mark is so limited shall be taken into consideration “by any tribunal in determining whether it is distinctive or not. If a trade mark is registered* without limitation of colour it shall be deemed to be registered for all colours.
Mr. GLYNN (Angas).- Would not this be a convenient time to report progress?
– - Oh, dear, no. We have not done anything yet.
– We have got through the most contentious part of the Bill, with the exception of the trade union label provisions.
– - Then it cannot take long to deal with the rest. I think that we can go further.
– Some of us do not live in Melbourne, and cannot take things so easily as those who do.
– Many of us were travelling all last night, and it cannot be said that we have not addressed ourselves to work today. I think that the present good feeling should be encouraged.
Clause 23 agreed to.
Clause’ 24 -
– Why should we provide that a mark must be publicly used by more than three persons as conclusive evidence that it is common to the trade? Under section 39 of the English Act, user by1 only two persons is necessary.
– May we have a quorum? [Quorum formed.]
– I move-
That the word “ three “ be left out, with a view to insert the word “ two.”
– Section 39 of the English Act provides that under certain circumstances, where two or more persons are registered proprietors, they shall have no right of exclusive user one against the other ; but it is necessary to have user by more than three persons to make a mark common to the trade.
Amendment negatived.
Amendments (by Mr. Isaacs) agreed to-
That after the word “ mark,” line 1, the words “ or matter therein,” be inserted ; that after the word “ publicly “ the words “ and honestly “ be inserted ; that after the word “ three “ the word “several” be inserted.
Amendment (by Mr. Isaacs) proposed -
That the words “ treated as conclusive,” line 4, be left Out.
– In view of the amendments we have just made, does the Attorney-General think it desirable to omit these words? Surely the fact that three several persons had been honestly using a trade mark in any one State would be accepted by any Court as sufficient evidence as to common user ? That is the very evidence that would be offered in support of a claim that the trade mark was common to the trade, and it would be regarded as sufficient without any statutory authority.
– I think that the honorable and learned member is quite right.
Amendment negatived.
– Is it intended that the common use of a- trade mark in any one State shall preclude any person from obtaining exclusive rights to use it in any other part of the Commonwealth? Surely it is not right that a trade mark shall become common throughout the Commonwealth because it has been in common use in any one State?
Mr. McCAY (Corinella).- The fact that a trade mark has been used by three persons in any one State would be stronger evidence of common user than if it had been used by three several persons in three several States, and therefore the clause should stand.
Clause, as amended, agreed to.
Clause 25 -
Except by order of the Court, the Registrar shall not register in respect of goods a trade mark identical with one belonging to a different proprietor which is already on the register in respect of the like goods, or class of goods, or so nearly resembling such a trade mark as to be likely to deceive.
– It appears to me that no Court shouldbe empowered to order the registration of a trade mark identical with one already on the register. I could appreciate the advantage of a prohibition attaching to the registration of a trade mark so nearly resembling one already registered as to be likely to deceive, but I do not see why we should go any further.
– That is the English law.
– I do not care about that.
– One trade mark may be improperly on the register.
– That is another matter, which is dealt with in other parts of the Bill. If provision were made in regard to the registration of a trade mark identical with one wrongly on the register I should be content.
– Two persons may have equal rights of registration, and the Courts have to see that justice is done.
– The Courts are supposed to see that justice is done, but very often we pass Acts which the Judges say they cannot understand.
Clause agreed to.
Clause 26 -
Where the name or a representation of a living person appears on a trade mark, the Registrar may require the applicant to furnish him with the consent of that person, to the name or representation appearing on the trade mark before he proceeds with the registration of the trade mark.
– This clause appears to afford no protection to the users of State registered trade marks. Under the law of a State, it may be possible for a man or firm to register a trade mark which contains some representation of a living being. But under this provision the Registrar will be compelled to ask the holder of any such trade mark to show his authority for using that representation. I do not suggest for a moment that it should be possible to place the portrait of a man upon a trade mark without his permission; but if people already enjoy that right under the law of any State, we should be very chary about interfering with them.
– The. person portrayed in any such representation will probably be dead before the owner of the trade mark will require to re- register it.
– But this clause does not deal with the question of registration at all.
– It does-.
– If the Attorney-General assures me that it merely deals with the question of registration, my objection vanishes.
– I move -
That after the word “ person,” line 2, the following words be inserted “ or a person believed by the Registrar to be living.”
In the absence of this amendment, the onus of proving that a person was living would be thrown upon the Registrar.
Amendment agreed to.
– Under the amendment which has just been made, if the Registrar believes a person to be living, when, as a matter of fact, he is dead, he will be required to obtain a consent which cannot be furnished without some difficulty. Should we not provide that the Registrar shall require the applicant to furnish the proof ?
– When a person is shown to be dead, the Registrar will not believe that he is living.
Clause, as amended, agreed to.
Clause, 2 7 agreed to.
Clause 28 (Concurrent user).
Mr. McCAY (Corinella). - I suggest that the Attorney- General should report progress. Upon Tuesday night it is usual for the House to rise much earlier than 11 o’clock.
– Some of these clauses are of purely a formal character.
– We have heard that statement before. I suggest that after clause 31 has been disposed of, the Attorney - General should report progress.
– I am afraid that the Attorney-General regards this Bill as one which should not be discussed at all.
– There are one or two very debatable clauses in Division 2.
– I have no objection to business being interrupted for a moment to two, in order that a question of that character may be put to the Minister, but I would point out that the question before the Chair is the consideration of clause 28.
– I wish to ask whether the Attorney-General is prepared to report progress ?
-No. I think we ought to reach clause 46 to-night.
– I point out to the AttorneyGeneral that clause 34, to which attention has previously been directed, is bound to create some discussion. The Attorney-General must admit that the remarks of honorable members have been commendably brief.
– And very frequent.
Clause agreed to.
Clause 29 -
Amendment (by Mr. Isaacs) agreed to -
That after the word “ marks,” line 9, tie words “ and shall be entered on the register as such, and shall each have all the incidents of an independent trade mark” be inserted.
Mr. JOSEPH COOK (Parramatta).Does this clause mean that if an individual has secured the registration of any part of a trade mark, he has obtained registration in respect of the whole of it? I think it assumes that.
– I do not understand the honorable member’s difficulty.
– The clause contains nothing as to the applicant having proprietary interest or right in the trade mark to which the separate part that may be registered belongs.
– Yes; the opening sentence refers to the whole.
– Then may a man register a trade mark and have a separate right to the use of a part of it ?
– He may have a trade mark and be using it, and he may also be using a separate part of it. .
Clause, as amended, agreed to.
Clause 30 (User of associated trade mark).
– I would ask the Attorney-General whether, having regard to clause 29 as it now stands, this clause is not mere surplusage. Clause 29 provides that -
The user of the whole trade mark shall for the purposes of this Act be deemed to be also a user of the part separately registered as a trade mark.
Then we have in clause 30 the words -
Where under the provisions of this Act user of a registered trade mark is required to be proved for any purpose the Registrar . . may . . accept user of an associated registered trade mark as an equivalent for the user of the first mentioned trade mark.
Does that mean that user of the part is to be accepted as user of the whole, or that user of the whole is to be accepted as user of the part?
– That user of the whole thing is to be accepted as equivalent to user of the part.
– Clause 29 provides that the user of the whole trade mark shall be deemed to be also a user of the part. It gives no option either to the Registrar, the law officer, or the Court, but clause 30 provides that either of these “ may “ accept user of an associated trade mark as an equivalent for the user of the first-mentioned trade mark.
– Section 27 of the English Act takes the same view.
– Another section of the English Act extends the meaning of the words “ associated trade marks.” The only associated trade marks that we have under our Bill is when a part is associated with the whole.
– The same observation would apply.
– I do not think so. Section 24 of the English Act provides -
If application be made for the registration of a trade mark so closely resembling a trade mark of the applicant already on the register for the same goods or description of goods as to be calculated to deceive or cause confusion if used by a person other than the applicant, the tribunal hearing the application may require as a condition of registration that such trade marks shall be entered on the register as associated trade mark.
I do not think that there is any corresponding provision in this Bill. “Associated trade marks,” in the English Act, covers a combination which is not included in this measure. Section 27 of the English Act is to meet that particular case. Section 25 of the English Act corresponds with clause 29 in this Bill while clause 30 corresponds with section 27 of the English Act, but has no clause relating to it in the same way.
– The honorable and learned member thinks that the clause is mere redundancy ?
– I think it is worse than redundancy. I think that it is limiting to the option of the Court, a matter which, by the preceding clause, has been made compulsory. It is not only redundant, but contradictory, or else limiting in its effect.
– In the one case it is the user of a mark, and in the other the user of a registered mark. At all events I will look into the point.
– I believe that if the honorable and learned gentleman does so, he will find that clause 30 is designed to provide for a case which exists under the English law, but does not exist under this measure. I think it is an oversight on the part of the draftsman.
– I shall look into the matter.
Clause agreed to.
Clause 31 (Series of trade marks).
Mr. JOSEPH COOK (Parramatta).Under this clause trade marks which, while resembling each other in essential particulars, yet differ in respect of statements of number, price, quality, or names of place may be registered as a series in one registration. Surely these are not distinctive qualities.
– Numbers are placed on such articles as cotton. Cottons resemble each other in essential particulars, the only difference being in the matter of grades.
– I fail to see how these can be distinctive marks. Is there such a difference between a suit or clothes costing and another costing £3 10s. as would allow of a distinction of the kind proposed ?
– There are different qualities of calico and of various other goods that are put on the market.
– Calico might be sold for 3d. a yard in one town, and for 4d. or 5d. a yard in another. I under- stood that the trade mark was to indicate quality.
– This has been English law for many years, and is provided for in section 26 of the present Act.
– In that case I subside, though I should like to know the meaning of the provision. It seems to me absurd.
– Clause 16 provides that a trade mark shall not be a geographical name, or a word likely to be understood in a geographical sense. Yet this clause gives power to register names of places. How can the two provisions be reconciled ?
– Clause16 provides that the essential particulars of a registrable trade mark shall not be a geographical name used, or likely to be understood, in a geographical sense, but clause 17 provides that additional matter, consisting of any letters, words, or figures, or combinations of them, may be used. Clause 31 deals with trade marks which resemble each other in essential particular but differ in respect to statements of number, quality, price, and names of places. For instance, a manufacturer may use as a trade mark a label on which is printed in red an elephant, and under it the word “London,” while he may usea similar mark, substituting the word “ Manchester “ for the word “ London, ‘ ‘ and a third mark, substituting the words “ New York “ for the word “ Manchester,” to indicate grades or qualities.
Clause agreed to.
Clause 32 -
The application must . . .
Amendment (by Mr. Isaacs) agreed to -
That all the words after “Commonwealth” be left out, with a view to insert in lieu thereof the words “ as an address for service.”
– Would it not be well to provide for a change of address for service?
– The regulations will provide for that.
Clause further- amended verbally, and agreed to.
Clause 33 -
– Every application must be lodged by being left at or sent by post to the Trade Marks Office. I suggest that applications sent by post should be deemed to have been lodged at the time stated on the post-marks they bear.
– Would that snow the hour ?
– We cannot provide for particulars that are not given on the postmarks, ‘only some of which show the hour.’
– I will note the suggestion of the honorable and learned member.
Amendment (by Mr. Isaacs) agreed to -
That all the words after the word , “ shall,” line 4, to the end of paragraph 2, be left out, with -a view to insert in lieu thereof the words : - “ ascertain and report whether the trade mark is a registrable trade mark and whether it is identical with a trade mark already on the register under this Act or any State Trade Marks Act in respect of the like goods or class of goods, or so nearly resembles the latter trade mark as to be likely to deceive.”
– We have already provided that if a trade mark has been used honestly and publicly by more than three persons in any one State that fact shall be treated as conclusive evidence that it is common to the trade. Suppose, for example, that a trade mark for “ Skylark “ tea has been registered in Victoria and New South Wales, but not in Western Australia, and that some persons in the latter State, knowing of the popularity of the tea, use the trade mark, and make it common. I presume that under the provision we have already made it will be impossible for that trade mark to be registered in any State except those in which proprietary rights have already been acquired. It appears to me that the Registrar will have to inquire not only into the questions referred to in the amendment, but also as to whether the trade mark has been rendered common to the whole Commonwealth by user.
– I shall look into that matter.
Clause, as amended, agreed to.
Clause 34 -
Amendments (by Mr. Isaacs) agreed to -
That the words “ The Registrar or law officer or both,” sub-clause 4, be left out ; that the word “ granted “ be left out, with a view to insert in lieu thereof the word “ accepted.”
– I think that the Attorney-General might consider the suggestion made by the honorable and learned member for Northern Melbourne and the honorable and learned member for Corinella with regard to doing away with “ the right of appeal to the law officer, with a view to providing some easier and cheaper method of appealing to the Courts direct.
Clause, as amended, agreed to.
Clause 35-
If the applicant so desires, an appeal shall lie direct from the Registrar to the Court, without any appeal to the Law Officer.
Amendment (by Mr. Isaacs) proposed -
That the words “ an appeal shall lie,” be. left out, with a view to insert in lieu thereof the words “ he may appeal.”
– Is the AttorneyGeneral clear that the clauses in this division of the Bill apply only to unopposed applications?
– I think so.
– I would point out that in clause 34 it is provided that “ any party aggrieved by the decision of the law officer “ may appeal to the Court. That seems to imply that there are parties other than the applicant, and that will need to be altered if these clauses are intended to refer merely to unopposed applications.
– I will make a note of the point.
Amendment agreed to.
Clause, as amended, agreed to.
Clauses 36 and 37 agreed to.
Progress reported.
PAPERS.
MINISTERS laid upon the table the following papers: -
Correspondence about (he Trade Marks Bill between the Attorney-General’s Department and the Central Council of Employers of Australia.
Provisional Defence Regulations, amendment of paragraph 68, Statutory Rules 1905, No. 74.
House adjourned at rr.31 p.m.
Cite as: Australia, House of Representatives, Debates, 28 November 1905, viewed 22 October 2017, <http://historichansard.net/hofreps/1905/19051128_reps_2_29/>.