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Wednesday, 29 November 1905

Mr HIGGINS - That is so. I understand that the Attorney-General has looked into the matter, with a view to ascertain whether he can devise a simple form of transfer, which, on being brought to the office of Trade Marks, could be registered.

Mr Isaacs - Yes. We should have to pre-suppose a full contract of the business, stock, good-will, and trade mark.

Mr HIGGINS - Quite so. If it were in my power I should not leave the matter to regulations. Looking at the clause to which reference has been made, I am not at all sure that the regulations would cover an assignment. Assignment is not prescribed for by the Bill ; it will not be necessary for the purposes of this measure, and, above all. the regulations may not prescribe that which we wish to have prescribed. What I suggest is that we should insert words providing that a trade mark may be assigned in the form in the schedule, and then in the form, set forth in simple language, we might have the words " together with the good-will of the business in- ." A man would then see upon the face of the form in the schedule an intimation that he was also to include his business. We could provide in the Bill itself that an assignment might be, not must be, in a certain form, leaving to those who wish to use a very elaborate form of transfer the power to give effect to their desire, but enabling the public generally to ascertain by turning to the schedule that there is a simple form of transfer of a trade mark, together with the business attaching to it. I submit this suggestion to the Attorney-General, but do not think that he should act upon it on -the spur of pressure in the House. He should look into the matter, and see how he could best achieve the purpose which the honorable member for South Sydney has in view.

Mr. G.B. EDWARDS (South Sydney). - There mav be a legal difference between "good-will" and "trade mark"; but I feel quite safe in stating, after some experience, that when I purchase the trade mark of ai business, I secure that business, no matter who purchases the good-will. By way of illustration, let us assume that I purchase the trade mark in respect of Lea and Perrins' sauce, and that - if it be possible to separate the good-will from the trade mark - another man purchases the good-will. In that event, I feel confident that I should be able to give the purchaser of the goodwill a long start and beat him badly.

Mr Isaacs - The honorable member would go for the new custom?

Mr G B EDWARDS (SOUTH SYDNEY, NEW SOUTH WALES) - That is so. The trade mark, as the greater, must always include the good-will. I have no objection to the proposal that it shall be stated in the form of transfer that " trade mark" shall include "good-will," because a man who parts with his trade mark has nothing left in the shape of good- will to sell. I strongly agree with the honorable and learned member for Northern Melbourne that we should deal with this question in the Bill itself. The Attorney-General has stated that it is the intention of the Government, of which he is a distinguished member, that regulations shall be drafted to carry out the object that I have in view. But that is not sufficient. The Attorney-General may unhappily pass away, politically, and his successor may not be disposed to deal with the matter by regulation.

Mr Isaacs - It is quite possible to provide for it in the Bill, if that be desired.

Mr G B EDWARDS (SOUTH SYDNEY, NEW SOUTH WALES) - It is not only possible, but eminently desirable. We should then know that our intention was being carried out. Unless we embody our intention in the Bill itself, we shall have only the assurance which the Attorney-General has endeavoured to give us, and the knowledge that Governments, in the discharge of their Executive functions, as a rule do not do more than they are compelled to do. Australia was in the van of progress in the matter of the simplification of the process of transferring land, and scrip, sometimes worth' far more than is a trade mark, may also be transferred in a very simple way. At my instigation, we have made a similar provision in regardto patents, and I think that we should follow the same course in connexion with the transfer of trade marks.

Mr Isaacs - I quite agree with the honorable member. It is only a matter of how to give effect to our desire.

Mr G B EDWARDS (SOUTH SYDNEY, NEW SOUTH WALES) - If the legal distinction between " good-will " and " business " is the real difficulty, let us make the two inseparable.

Mr Isaacs - We have done that.

Mr G B EDWARDS (SOUTH SYDNEY, NEW SOUTH WALES) - Then the difficulty vanishes. The good-will is something less than the shadow of a trade mark. The trade mark is really the good-will.

Mr Isaacs - It is part of the goodwill.

Mr G B EDWARDS (SOUTH SYDNEY, NEW SOUTH WALES) - It should be the aim of the Legislature to secure people in the possession of that which is their own, and in the right to trade in it at the least possible expense.

Mr Isaacs -I will try to do that.

Mr G B EDWARDS (SOUTH SYDNEY, NEW SOUTH WALES) - In some cases it costs from five guineas to forty guineas to transfer a trade mark; whereas if my proposal were adopted a transfer could be made at a cost of from1s. to 2s. 6d. It is no part of the province of this Parliament to create work for professional gentlemen. We should provide a ready means of transferring commercial rights from one person to another. A partially-ruined trader might have nothing left but his trade mark, and instead of penalizing him by requiring him to employ professional men to effect the transfer of that mark at considerable cost, we should enable him to transfer it as easily as one may transfer one's interest in land, scrip, or life assurance policies. A man may transfer his interest in these things for the expenditure of a shilling or two, and why should we make him pay pounds for the transference of his right in a trade mark.

Clause agreed to.

Clause 69 agreed to.

Clause 70 -

(1)   Subject to this Act, the Court . . . may order the rectification of theregister by -

(i)   The expunging of any entry wrongly made in or remaining on the register ; or

(3)   Notice of every application (other than an application by the Registrar) shall be given to the Registrar, who may be heard thereon.

Amendments (by Mr. Isaacs) agreed to -

That after the word "or," line 4, the following new paragraph be inserted : - " (b1) The insertion in the registerof any exception or limitation affecting the registration of a trade mark which, in the opinion of the Court, ought to be inserted ; or."

That after the word " application," line 5, the words " to the Court pursuant to this section " be inserted.

Clause, as amended, agreed to.

Clause 71 agreed to.

Clause 72 verbally amended and agreed to.

Clause 73 to 78, negatived.

Clause 79 agreed to.

Clause 80 (Incidental powers of Court).

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