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Tuesday, 5 December 1905
Page: 6223


Mr GLYNN (Angas) - As we havehad a straight-out vote on the principle involved, I am glad that the honorable and learned member for Corinella has withdrawn the amendment of which he has given notice; but there are a few matters relating to this clause to which I desire to draw attention. Honorable members will find that the word " knowingly," which appears in paragraph b, is missing from paragraphs a and c of the clause, so that the offence to which those paragraphs refer is merely that of falsely applying a mark to goods. Under paragraph a, if a man falsely applies to any goods, for the purposes of trade or sale, a workers' mark, it will be no defence to plead that it was done without knowledge, that the mark had been registered in the name of a union, or of any one else ; nor will there be the defence for which provision is made in the Commerce Bill which places upon the defendant the onus of proving that he was not acting knowingly in contravention of the clause.


Mr Watson - Is the plea of want of knowledge of registration a defence to a charge of falsely applying a trade mark?


Mr GLYNN - There is no such offence as this in connexion with ordinary trade marks. Honorable members will recollect that when the Commerce Bill was under consideration it was pointed out that we could not constitutionally make the same provisions in regard to internal commerce as we were making in relation to the external trade of the Commonwealth. But that is what we are proposing to do in this Case. It seems to me that the word " knowingly " has been omitted from the paragraphs in question so as to make them more stringent and less fair to the party charged in connexion with internal offences, than are the provisions of the Commerce Bill. For instance, clause 9 of the Commerce Bill provides that no person shall import any goods to which a false trade description is applied. That is practically the offence dealt with under paragraph a of the clause now under consideration. But in the Commence Bill there is the following qualification in favour of the defendant, which has been omitted from this clause: -

It shall be a defence to a prosecution for an offence against this section if the defendant proves that he did not knowingly import the goods in contravention of this section.

But for that provision, the offence is practically the same in each case; in the Commerce Bill it relates to a false application of a trade description; whilst under this clause it is the false application of a worker's mark. Under the Commerce Bill, if. the defendant can show that he did not knowingly apply the false trade description, he is held to be not guilty; but the AttorneyGeneral's draftsman has omitted all reference to that defence in the clause now under consideration. I wish to draw attention to the Trade Marks Acts of the States. The South Australian Act of 1892, like several of the Trade Marks Acts of the other States, is based upon English legislation, and it contains several of the provisions of the Merchandise Marks Act of 1887. That Act contains provisions such as we have inserted in the Commerce Bill, against falsely applying trade marks to goods, and in that Act also the word " knowingly " is used. I think honorable members will see that it was with a view to make this provision more stringent than the ordinary law of the States and the Commerce Bill that the word "knowingly" has been omitted from these paragraphs. If the Committee wishes to leave the clause as it stands, well and good. All that I can say is that if a man imported goods, and did not know at the time that the trade mark which they bore had been registered, he would be adjudged guilty, although he could really prove his innocence.


Mr McCay - A man might import goods, and be unaware that they bore a certain trade mark until they arrived here.


Mr GLYNN - Exactly. Under paragraph b, the offender must knowingly sell or expose for sale any goods to which a mark has been falsely applied.


Mr Watson - If a man places a false mark on goods, he must do so knowingly.


Mr GLYNN - No doubt the supposition of the draftsman was that if a man falsely places a trade mark upon goods, he must know that he is doing so in contravention of another man's right. But the same observation might be applied to the English Trade Marks Act of 1887, the Acts of the States, and the Commerce Bill, where the word " knowingly " is used. There are several other variations from the existing States legislation, as well as the Imperial Act, and the Commerce Bill, to which I could draw attention. It is my duty to call attention to the fact that we are making the law as regards the false application of the union mark far more harsh against the defendant than under the existing law would be the case, where there is a penal violation of the rights of the proprietor of a registered trade mark. My inclination is to move that the word " knowingly " be inserted before the word " falsely." I do not know whether the Attorney-General will accept an amendment to that effect.

Mr. McCAY(Corinella).- I desire to know whether the Attorney-General intends to accept the suggestion of the honorable member for Angas, either to use the word "knowingly " as regards all the provisions, or to add a proviso, as in. the Commerce Act, that it shall be a defence if the defendant proves that he did not knowingly do it.

Mr. ISAACS(Indi- Attorney-General). - I do not feel inclined to accept the first suggestion., because I cannot conceive that a man can falsely apply a mark of this kind to goods without doing it knowingly. I am inclined, however, to accept the suggestion to insert the word " knowingly " in paragraph c. I was discussing this matter with the honorable and learned member for Northern Melbourne this afternoon, and the result of my consideration was that it is possible for a man to innocently import goods that have a false trade mark, be- cause the)' may have been produced here, exported, and imported. Under these circumstances, I think it is fair to put the word " knowingly " in paragraph c, but not in paragraph a.

Amendment (by Mr. Glynn) agreed to -

That the word "knowingly" be inserted before the word "import" in paragraph c of subclause 1.

Mr. GLYNN(Angas).- I think that the Attorney-General ought to insert the word " and after the word " of " in the phrase " for the purpose ot indicating, " in subclause 1. As the clause stands now, if a mark is one which has been adopted for the purpose of indicating conditions of trade, how is the man who imports the goods, or falsely applies the mark, to know the state of mind of the man who adopted the mark ? It may have been adopted for the purpose of indicating conditions of trade, but there is nothing on the mark itself to show that. If a man is to be punished for putting on a trade mark, it ought to be clearly such a mark as shows the object of its registered owners.. But, as the clause stands, as long as their purpose exists, although it may never have been indicated to the defendant, still he is guilty. What I ask the Committee, in common fairness, to do is to insure that, not only must the object be to indicate conditions of trade, but that that object must be somewhere indicated to the person who is charged.


Mr Isaacs - I think that in cases there would be great controversy as to whether, in fact, it did indicate it.







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