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Tuesday, 28 November 1905


Mr McCAY (Corinella) - I understand that the Attorney-General has not yet agreed to accept the amendment.


Mr Isaacs - The honorable and learnedmember was not present when I gave my reasons for refusing to accept it.


Mr McCAY - 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.


Mr Isaacs - That is not the first English Act in which it has appeared.


Mr McCAY - No. There was a definition in an earlier Act.


Mr Isaacs - In the Merchandise Act.


Mr McCAY - 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.


Mr Isaacs - Does the honorable and learned member think that the definition appeared in an earlier English Trade Marks Act?


Mr McCAY - 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-


Mr Isaacs - I do not think that the honorable and learned member is fully seized of the reasons I gave for opposing the amendment.


Mr McCAY - The Attorney-General thinks that the Bill will be better without this definition.


Mr Isaacs - 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.


Mr McCAY - 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.


Mr Isaacs - No; I wish to provide for trade marks, whatever they are.


Mr McCAY - So that "trade mark" in one State will have a certain meaning, and in another State a different one.


Mr Isaacs - No; the words will have the same meaning all through.


Mr McCAY - 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.


Mr Isaacs - 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.


Mr McCAY - 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.


Mr Isaacs - If we insert this definition, we shall have to argue that it affects every definition in every State Act dealing with this question.


Mr McCAY - 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.


Mr Isaacs - Not if we limit the definition of "trade mark."


Mr McCAY - 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.


Mr Isaacs - No; because those rerenewals must stop after a certain time.


Mr McCAY - When .the time expires, they will have to be renewed under this measure ?


Mr Isaacs - Yes.


Mr McCAY - And when the renewal takes place it should be under a uniform system.


Mr Isaacs - That is what I am endeavouring to secure.


Mr McCAY - 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 ยป 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-


Mr Isaacs - Two Governments took the same view as I do. I am not making any departure from what they did.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - But did the late Government, as a Government, deal with this matter ?


Mr McCAY - No.


Mr Isaacs - I shall be able to show that they did.


Mr McCAY - I beg the honorable and learned gentleman's pardon.


Mr Isaacs - I may be wrong, but I shall give reasons for my belief.


Mr McCAY - 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. JOSEPHCOOK (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.


Mr Isaacs - Of what?







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