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Tuesday, 28 November 1905


Mr CONROY (Werriwa) - 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.


Mr Isaacs - The' honorable and learned member for Angas has not told us what the effect of his amendment will be.


Mr CONROY - It will define exactly what we mean by "trade mark."


Mr Isaacs - What would be the legal interpretation of " trade mark " then ?


Mr CONROY - 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.


Mr Isaacs - What meaning would the amendment have?


Mr CONROY - 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.


Mr Hutchison - Then the honorable and learned member might just as well let the provisions go.


Mr CONROY - 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.


Mr Hutchison - The principle is the same. It is proposed to protect the employe' as well as the employer.


Mr CONROY - 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.


Mr Hutchison - If it is not accepted we shall know that.


Mr CONROY - 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.


Mr King O'Malley - We must have cheap law.


Mr CONROY - 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.


Mr Hutchison - We are opposing this particular amendment so that it shall not be limited.


Mr CONROY - 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.


Mr Spence - There are plenty of such oases in America.


Mr CONROY - 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.


Mr Isaacs - 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.


The CHAIRMAN - 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.


Mr CONROY - 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.


Mr Higgins - What does the honorable and learned member understand by the words "goods of the proprietor" in the proposed definition?


Mr CONROY - I cannot discuss that matter at the present moment.


Mr Higgins - Is the definition so vague and uncertain that the honorable and learned member does not know its meaning?


Mr CONROY - I do not admit that if is vague or uncertain.


Mr Higgins - What does the honorable and learned member understand by the words " goods of the proprietor of such trade mark " ?


Mr CONROY - 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.


Mr Hutchison - The honorable and learned member himself said that we shall do so.


Mr CONROY - 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


Mr Hutchison - 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 ?


Mr CONROY - 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.


Mr Hutchison - We have full power to legislate upon that matter.


Mr CONROY - 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.


Mr Hutchison - The Constitution gives us supreme power to deal with this matter.


The CHAIRMAN - Order ! I do not think that the definition which is under consideration has anything to do with our powers under the Constitution.


Mr CONROY - 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.


Mr Conroy - But only after litigation.


Mr ISAACS - Without litigation we can never be absolutely certain of anything under our Constitution.


Mr Conroy - We wish to avoid! litigation.


Mr ISAACS - 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?


Mr Glynn - 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.


Mr ISAACS - 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.


Mr Glynn - I read the evidence he gave before the Committee.


Mr ISAACS - 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- .


Mr Glynn - He could not do that, because section 62 is inconsistent with it.


Mr ISAACS - 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-


Mr Glynn - 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?


Mr ISAACS - Not necessarily.


Mr Glynn - That is the point.


Mr ISAACS - 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.


Mr Glynn - I admit that.


Mr ISAACS - 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-


Mr Glynn - But the Constitution is an Imperial Act.


Mr ISAACS - 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 e\vent, 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.







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