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Tuesday, 28 November 1905

Mr LONSDALE (New England) -! 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.

Mr Isaacs - 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."

Mr McCAY - 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.

Mr Isaacs - I think that the clause is all right.

Mr McCAY - 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 -

(a)   the words " Trade Mark," " Registered," " Registered Design," " Copyright," "Entered at Stationers' Hall," "To counterfeit this is Forgery," or words to the like effect; or

(b)   a representation of the King, the Queen, or any member of the Royal Family.

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