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Tuesday, 28 November 1905


Mr ISAACS (Indi) (Attorney-General) . - 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.


Mr McCay - He would be in the same position as a man. who wished to register a new trade mark.


Mr ISAACS - 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. JOSEPHCOOK (Parramatta). - The Attorney-General has just told us that registration is a good thing for the purposes of evidence--


Mr Isaacs - And record.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - I take it that it is only evidence as from the time of registration.


Mr Isaacs - Yes.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - 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.


Mr Isaacs - Only from the date of registration.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - 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."







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