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Tuesday, 28 November 1905

Mr McCAY (Corinella) - 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?

Mr Isaacs - That user of the whole thing is to be accepted as equivalent to user of the part.

Mr McCAY - 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.

Mr Isaacs - Section 27 of the English Act takes the same view.

Mr McCAY - 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.

Mr Isaacs - The same observation would apply.

Mr McCAY - 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.

Mr Isaacs - The honorable and learned member thinks that the clause is mere redundancy ?

Mr McCAY - 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.

Mr Isaacs - 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.

Mr McCAY - 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.

Mr Isaacs - I shall look into the matter.

Clause agreed to.

Clause 31 (Series of trade marks).

Mr. JOSEPHCOOK (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.

Mr Groom - Numbers are placed on such articles as cotton. Cottons resemble each other in essential particulars, the only difference being in the matter of grades.

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

Mr Isaacs - There are different qualities of calico and of various other goods that are put on the market.

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

Mr Isaacs - This has been English law for many years, and is provided for in section 26 of the present Act.

Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - In that case I subside, though I should like to know the meaning of the provision. It seems to me absurd.

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